“Freedom Under Threat”: New report on the spread of laws restricting NGOs in Africa from Freedom House

The new report “Freedom Under Threat: the Spread of Anti-NGO Measures in Africa was released today. It provides a valuable review of recent developments in counter-democracy push back from governments in power in numerous countries.

In Kenya, here is a good, straightforward recitation of the approach taken after the “UhuRuto” election of 2013 with a Jubilee Party platform calling for a crackdown on independent NGOs said to be modeled after post 2005 repressive measures established by the Meles Zenawi government in Ethiopia (see “Attacks on Kenyan civil society prefigured in Jubilee ‘manifesto’“) and the legal “pitched battle” since:

In Kenya, meanwhile, the new government elected in 2013 made six successive attempts to modify the PBO Act—a progressive law passed by Parliament and signed by the outgoing president just months prior to the elections.49 All of the attempts were loudly opposed by NGOs and the political opposition, and the High Court ordered the government on October 31, 2016, to publish the original PBO Act in the official gazette to bring it into operation.50 The government refused to comply, prompting NGOs to request that two cabinet secretaries—overseeing the Ministry of Devolution and Planning and the Ministry of Interior and Coordination of National Government—be held in contempt of court.51 The court ruled in the NGOs’ favor on May 12, 2017. Rather than implement the court order, however, the government continues to apply the outdated NGO Act of 1990, and it is unclear how the situation will be resolved. The broad-based Civil Society Reference Group, an alliance of over 1,500 leaders of national and international NGOs that ran a multiyear campaign for the adoption of the PBO Act,52 continues to insist on its implementation. Indeed, Kenya represents an interesting case study of the pitched battles that have characterized the struggle between governments on the continent that seek to narrow democratic space on the one hand and civil society sectors that seek to preserve democratic gains on the other.

The moves by African rulers appear related to or inspired by authoritarian trends elsewhere:

Although no attempt is made in this report to analyze laws outside Africa, there are parallels between anti-NGO measures adopted across the continent since 2006 and those adopted in Russia and China—two influential global actors that have forged close ties with African governments. Sudan’s anti-NGO law coincided with the first of several Russian laws,6 closely followed by Rwanda’s measure in 2008. Russia’s second wave of legal restrictions coincided with those of several African countries—notably Ethiopia, Zambia, and Mozambique—while China’s 2016 and 2018 regulations came alongside measures by several other African governments surveyed in this report. It is difficult to establish specific links between the African laws and those adopted by the two global powers, but the close relationships built in Africa since 2000—particularly by China—support a modeling hypothesis.

Battle over Kenyan election corruption has commenced with vote in Parliament to ban the French vendor OT-Morpho/IDEMIA

IDEMIA f/k/a OT-Morpho before a name change (and previously Safran Morpho before the French defense conglomerate sold this division to the French technology group Oburthur Technologies in a transaction closed shortly before August 2017 Kenyan election) has been a fixture of the past two Kenyan elections.

I have written about issues involving these procurements numerous times over the years and am continuing my engagement with the USAID Freedom Of Information office in their review and processing of public information from USAID support to the Kenyan IEBC in the 2013 election, from my request in 2015. (So far they have processed and released or withheld about half of the records sent from Nairobi to Washington by early 2016. They continue to assure me that they are working away at this.)

See: Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows U.S. paid for failed Results Transmission system.

Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition.

Nigeria example shows why U.S. and other donors should act now on election technology procurement fraud.

USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers

Last July IDEMIA dismissed without explanation a defamation suit it had filed against Raila Odinga and other NASA coalition leaders in April 2018 shortly after Raila’s “handshake” with Uhuru ended high level political contention over problematic KIEMS system IDEMIA had sold the IEBC in March 2017. The court records I reviewed indicted a unilateral dismissal rather than a settlement.

The judgment of the Supreme Court in the 2013 election petitions of AfriCOG and the opposition found that there was evidence of procurement fraud with the failed technology acquisitions, and ordered an investigation, but the IEBC, Kenyan prosecutors and donors all failed on that account. OT-Morpho, n/k/a IDEMIA once again was chosen in an opaque and controversial procurement process for the bigger 2017 “integrated” system. (I was told by the USAID press office that USAID did not finance the KIEMS purchase for the IEBC for 2017.)

But finally today, reports the Daily Nation, “For credible elections, MPs vote to block Huduma Namba firm“:

Members of the National Assembly voted on Wednesday to block technology firm IDEMIA Securities from doing business in Kenya for at least 10 years, citing violation of the Companies Act.

The move complicates the ongoing Huduma Namba registration, as the contract was awarded to the French firm at Sh6 billion.

. . . .

The MPs amended the report of the House Committee on Public Accounts on the audited accounts of the Independent Electoral and Boundaries Commission (IEBC), to have the technology firm held accountable for irregular payments it received during the 2017 general elections.

“Do not be afraid. The government will protect you.” KANU Revivalists offer alternative to democratic values in Kenya

Shortly after I arrived in Kenya in mid-2007, Kenya’s parliament passed a media regulation bill which faced a storm of international diplomatic criticism as well as domestic protest.

President Kibaki at the time backed down and sent the bill back to Parliament where it was ultimately somewhat watered down. New legislation passed last week goes much further than what was dared under the first Kibaki Administration, in spite of the new constitution. This time there doesn’t seem to be much reaction from international governments–we give our aid money quietly and tiptoe so as not to step on important toes since we have been aggressively accused of imperialism and racism for not intervening to stop the ICC prosecutions of The Now Elected for the mayhem after the 2007 election–but the international media is much more aware of these issues than they were in 2007.

And if the media bill has been put in some limbo, it has been followed by the introduction of the Jubilee bill to assert more state control over civil society and restrict and channel foreign funding to non-governmental organizations. The Uhuruto team had not shown its cards on attacking the media during the election campaign, but civil society was always a known target. See Attacks on Kenyan Civil Society prefigured in Jubilee Manifesto, my post from March this year.  More freedom for the media and for civil society means more restraints on politicians in control of government.  Restricting civil society can help maximize the opportunity to control the media, and vice versa.

Kenyans are confronted once again by the hard choice of whether they are willing to challenge their “leaders” in governmental power to maintain their individual freedoms as citizens.

Uhuru Kenyatta stayed with KANU throughout his life through the formation of TNA as a vehicle for his presidential campaign in this year’s race.  Other than running in elections himself, he has not given much indication over the years that I am aware of being concerned for opening the democratic space and by running as “Moi’s Project” as the KANU nominee in 2002 he chose the old banner.  Of course when you are one of the richest men in Africa, and your mother is one of the richest women, because of what your father took for himself and his family when he was the one-party ruler, you find yourself with plenty of freedom of speech and freedom to politically organize regardless of the details of the system that confront the small people.

In the wake of the Westgate attack, and the desire of the government to avoid scrutiny or challenge, I am reminded poignantly of what Kibaki said when he first ventured out thirteen days after he had himself sworn in for his second term:

January 9, 2008–13 days after the 2007 election (NBC News):

Kibaki made his first trip to a trouble spot, addressing more than 1,000 refugees in western Kenya, many of whom had fled blazing homes, pursued by rock-throwing mobs wielding machetes and bows and arrows.
“Do not be afraid. The government will protect you. Nobody is going to be chased from where they live,” Kibaki said at a school transformed into a camp for the displaced in the corn-farming community of Burnt Forest. “Those who have been inciting people and brought this mayhem will be brought to justice.”
He indicated he would not consider demands for a new election or vote recount.
The election “is finished, and anybody who thinks they can turn it around should know that it’s not possible and it will never be possible,” he said.

Perhaps for those Kenyans that feel sure that the government will always protect them, there is no need for these things of a free media, civil society, the questioning of elections.  Kenya could just go back to the Chinese model of the one party state.  Kenyans who prefer a freer, more empowered citizenship as a matter of values, or who don’t feel they can count on the government to always protect them will have to decide to engage to protect those rights which are of course expressed in law in the new constitution.  See “CIC (Commission for the Implementation of the Constitution) says new media law unconstitutional”, Daily Nation.

Kenyan Media

Kenyan Media

Canadian High Commissioner misses the point in warning Kenyan politicians about ICC pullout

A diplomat has warned that the move last week by law makers to have Kenya pull out of the Rome Statute could jeopardise future search for international justice for Kenyans.

Canadian High Commissioner in Nairobi David Angell said pulling out of the Rome Statute, that established the International Criminal Court (ICC), would deal a blow to any future victims of violence that Kenyan judicial system would not handle.

“Canadian envoy warns in Kenyan ICC pull-out” Daily Nation

What search for international justice? Kenya’s last Parliament did not follow suspect William Ruto’s “Don’t be vague, go to The Hague” lead out of a preference for “international” justice over trying the suspects locally–rather it was an excuse for not prosecuting anyone themselves. Likewise the last Parliament did not then turn around and vote in December 2010 to withdraw from the ICC as soon as the charges came down against Ruto, Uhuru Kenyatta, Sang and the three others in consideration of the interests of “justice”. If the members of Kenyatta and Ruto’s Jubilee coalition who voted again to withdraw from the ICC on the eve of Ruto’s trial were in the least concerned about a “search for international justice” for victims of election violence–past or present–they would not have done so.

Kenyatta and Ruto as KANU leaders were on the side of election violence in Kenya in 1992 and 1997 and they certainly have not done anything to express remorse or “search for justice”–international or otherwise–for the victims. The very idea that there should be such a search for justice for victims of electoral violence is an affront to the political order in Kenya and on this Kenyatta and Ruto can easily circle the parliamentary wagons against the threat to their private sovereignty and that of their cohort.

The High Commissioner ought to appreciate that he is speaking to an audience which has, over many years, shown that it takes these thing deadly seriously. If the Canadians want to step into the current diplomatic vacuum in Nairobi to address the situation, I certainly applaud the intention, but they if they want to have influence they need to speak of things that their audience cares about.

It’s mid-June: another month goes by without Kenya’s election results while Hassan goes to Washington [revised]

Form 34 Posted

Form 34 Posted

IFES, the International Foundation for Electoral Systems, hosted the latest round of its “IEBC goes to Washington” events with Chairman Hassan on June 12–this one purporting to discuss “lessons learned” from the March 4 election (link to webcast). A key lesson for the Kenyan government so far appears to be that if you sit on the election results long enough you can outlast the observers and the donors will pat themselves on the back anyway.

I didn’t make the trip to Washington for this event, in part because I don’t think the event should have taken place until after, at a minimum, the election results were released, if not other basic information we have all been waiting for. I did watch on-line. Here is my take:

My impression was that the objective of this event was indicated by the introduction and the conclusion. These were extravagant conclusory statements from IFES CEO Bill Press about what a great success the Kenyan election was and what a great job the IEBC and its chairman did (and by implication of course IFES). Otherwise, there was just nothing new here. IFES’s Country Director Michael Yard gave a sober reminder of all the many things associated with basic electoral reform, like campaign finance laws, gender balance,etc. that remain undone–as he cautioned back in April 2012 with Hassan in Washington about the challenges of trying to do too much in too little time in introducing technology. The Washington triumphalism is “tone from the top” stuff that I haven’t heard from Yard or anyone else at IFES and I don’t doubt that everyone involved in actually working on the programs in Kenya did their best to avoid the kind of mess that actually came to pass.

From Press’ argument, the reason this was all a great success–end of story–without even having results released three months later, is that “Kenya didn’t burn.” If I were a Kenyan I would be a bit offended by that. First of all “Kenya” didn’t “burn” last time–there was major violence in some places, including arson by militias, major sponsors of which, based on the confirmed ICC charges, got together this time. Kenyans of all tribes and persuasions were chastened by the post-election violence last time. Because of the experience, religious and community groups, civil society and the international community invested heavily in peacebuilding and conflict warning and resolution approaches. Threat of further ICC prosecutions hung over the key political actors that used violence last time. Thanks to a ruling by Speaker Kenneth Marende in Parliament and the High Court at the time, after passage of the new constitution in 2010, a new Chief Justice was appointed who was acceptable to the opposition as well as to the President, giving the opposition some hope in going to court after the IEBC ruling that the Uhuruto ticket had reached 50.07%. The Government of Kenya heavily deployed military, paramilitary and police force, especially in areas most supportive of the opposition, and the new Inspector General (chief) of police announced a ban of political assembly and peaceful protest, irrespective of the constitution–while gangs patrolled many of the slum areas. The biggest number of people killed last time were shot by the police, as reported by the Waki Commission. Last time the shoot to kill policy was unexpected; this time it was understood in advance. People stayed home after voting for many reasons that do not constitute an endorsement of the work and conduct of the IEBC.

Saying that the IEBC did a “great job” because “Kenya didn’t burn” is part of what I mean about having lower standards for elections in Africa–sorry if it’s impolite to notice.

The obvious question, of course, is that if Kenya not “burning” warrants so much public chest beating this time, should we include public discussion of “lessons learned” or any accounting or apologies for last time when so many people were killed and maimed?

Meanwhile back in Nairobi, the election results are being missed.

The Star: “Raila wants IEBC results released”:

“If indeed the IEBC conducted a free and fair poll, why is it delaying the computation of the election results three months later? They should announce so that we know what TNA, ODM, Wiper among other parties got,” Raila told the crowd at the Kabiro Primary School.

The Supreme Court on April 9 upheld the IEBC declaration of Uhuru as the winner after Raila’s Cord challenged the outcome of the presidential election.

The court ruled that the process was within the law and that Uhuru had been validly elected as the president.

Raila’s sentiments come against the backdrop of divisions within the IEBC over the computation of the results. An IEBC commissioner, who did not want his identity revealed, told the Star that the final figure was to be released before the end of last week but the disagreement among them had caused the delay.

The figures, according to the commissioner, were to be finalised before presentation of budget estimates to the parliamentary committee.

Whereas some commissioners want the the process finalised, others want the section of the Political Parties’ Act providing for the computation of results amended to give the commission more time. Those pushing for the amendment want the parties to share the monies on the basis of their representation in the Parliament and the county assemblies.

According to the commissioner, the variation of the results between the presidential and other positions was “irreconcilable”.

“The IEBC was to release the results before the end of the week but the huge variation between the presidential results announced on the 9th of March this year and the other positions combined is the source of the headache,” the source said.

The more things change, the more they stay the same–what I wrote on “the Parliamentary pay fiasco” in 2010

English: Kenyan parliamentarian building, Nairobi

English: Kenyan parliamentarian building, Nairobi (Photo credit: Wikipedia)

Here is what I wrote on July 14, 2010:

The Parliamentary pay fiasco is a stark reminder of how out of touch Kenya’s political classes can be with the needs of the general public, the wananchi. Corporate CEOs may get “plus ups” in their compensation packages to pay for their taxes, but the notion that MPs in Kenya should be taxed fully on their compensation only if they get more pay, so as to make more than Members of Congress in the U.S. or almost any other legislators in the world, is guaranteed to be offensive to most Kenyans.

While Parliament as an institution does seem to have been making progress in its functioning,  it still has a long way to go. As I have written before, one of the problems is that there are a fair number of MPs who likely did not legitimately win their elections based on the problems shown by the Kreigler Report looking at the last election. And many of the people in the previous Parliament that had a record of serious public service and support for reform were defeated for re-election, in many cases at the party primary level.

We have heard rumors and discussion of bribery issues in parliament irrespective of the high pay–what are Kenyan taxpayers getting for their money?

A positive aspect to this is that it may help unite those who are frustrated by poor governance and selfishness by the political classes. The momentum from protesting this foolishness may help pass the constitutional referendum by prioritizing voters attention on the many positive aspects of the draft constitution instead of on the “contentious provisions” that have seemed to be attracting disproportionate energy.

 

Kenyan Parliamentary committee summons registrar of parties; issues include failure to publish election results

Old KANU Office

The Star reports on the latest round of the IEBC controversy:

Acting Registrar of Political Parties Lucy Ndung’u has been summoned by the National Assembly Committee on Justice and Legal Affairs. The committee wants to find out why she is holding two offices, the management of party affairs and budget allocation.

As the acting registrar, Ndung’u is yet to take the oath of office because her term expired with the coming into force of the Political Parties Act in late 2011. . . .

. . . .

Chepkonga also wondered how the registrar will distribute parties’ funds when the IEBC had not computed the March 4 election results. In the financial year 2013/14, the office of registrar of political parties has been allocated Sh344,650,758 by the National Treasury. But the House will have the final say in approving the expenditure.

The Act provides that ninety five per cent of this fund be shared proportionately by reference to the total number of votes secured by each political party in the preceding general election. Five per cent is left for administration purposes.

In effecting the 95 percent, the total number of votes secured by a political party shall be computed by adding the total number of votes obtained in the preceding general election by a political party in the election for the President, MPs, County Governors and members of county assemblies.

“These are some of the things we will be seeking explanations a committee. The management of public finances must be open,” Chepkonga said. William Cheptumo (Baringo North), who is also a member of the legal committee, said parties want to know the number of votes they got.

“Am also wondering why they have taken too long to compile the number of votes per political party,” he said. Ndungu is also said to be interested in retaining her position as the registrar once a new process has been initiated.

Ndungu is also said to be interested in reapplying for the job once a new process has been initiated. However, a number of MPs vowed to ensure that she doesn’t get the job. “She has been the stumbling block to party discipline in the country. We will ensure the motion is defeated,” an MP who declined to be mentioned said.

Here is yesterday’s story in the Standard in which Ms. Ndung’u is interviewed: “Political parties pay day here as Treasury opens purse”.

In the meantime, IFES has announced it is hosting IEBC Chairman Issac Hassan in Washington on June 12 for a discussion about “lessons learned” from the election and the EU Election Observation Mission released its Final Report.

Kenya’s IEBC dangles “kitu kidogo” for political parties to avoid publishing election results

The Star reported this week that the “IEBC wants political parties act amended“. From the headline one would expect to read perhaps an article on some type of reform arising out of the failed primary elections early this year, or the problem with “party hopping” . . .

But of course, it would be silly to think that the IEBC would concern itself with such things to improve accountability in the Kenyan electoral system.

No, the IEBC is faced with a problem. It doesn’t want to publish the election results. For the reason noted in my last post: the numbers of votes for the other offices don’t add up to the numbers of votes for president–according to the anonymous Commissioner quoted in the story, adding a direct confession to the clear circumstantial evidence that we have all seen for many weeks now.

The IEBC is attracting no visible pressure from Washington or London or the other “donors” who helped underwrite the IEBC. Whether this is because, as in 2007-08, the foreign policy mavens think it’s “better not to know” or whether because, as always, the foreign assistance mavens want a “success story” as much as a better democracy in Kenya in the future–or both–I don’t know.

So the immediate rub is the delay in providing public funding to Kenya’s political parties based on the election results. How to relieve pressure from pols who want the tax dollars doled out without publishing the election results that determine how the money is allocated? Change the law of course! So the money can be paid out without disclosing the results! An elegantly Kenyan solution.

Fiasco

“If how we did nominations is how we shall hold elections, God save Kenya,” Mituma Mathiu in the Daily Nation:

The political party nominations are a complete, utter fiasco, and they tell us a great deal about Kenya’s political culture.

First, and this is what puts the lives of all us in danger, is that politicians are a law unto themselves. . . .