Turning Point in Kenya? Update on opposition to Kenyan anti-NGO and Media Bills

“Freedom of Expression is Your Right”–Subversive NGO Solganeering in Kenya’s Neighbor Uganda
"Freedom of expression is your right"

Opposition to controversial Kenya Media Bill heats up” Sabahi Online via AllAfrica.com

Cuts in foreign funding for NGOs intended to silence critics–Human Rights Watch” from Trust.org

William Ruto and his Ethiopian host had chilling message on media freedom” from Macharia Gaitho in The Daily Nation.

Kenya attempts to silence civil society“, Freedom House Spotlight on Freedom.

For perspective (not just to say I warned you so) see my post about Kenyatta and media freedom from December 2009:  “More Government of Kenya action to muzzle media”:

The Standard reports that it has been enjoined  from publishing stories regarding Deputy Prime Minister Uhuru Kenyatta and the purchasing of government vehicles.  Uhuru sought the temporary injunction to protect his interests and reputation.  Seems like a classic case of a high gov’t official using prior restraint to avoid challenge to his job performance.

This is to me another example of fact that the media environment in Kenya is not quite as free as international commentators frequently suggest.  While there is quite a bit of reporting on corruption, the fact remains that it hasn’t dented impunity, and there is a great deal that is known but not reported, and many stories get started but never followed to conclusion.

After the paramilitary raid on the Standard Group in mid-2006, the US eventually made peace with impunity for this attack on the media.  By the summer of 2007, then-Internal Security Minister Michuki–who famously said of the Standard raid that the Standard, having “rattled a snake” should have expected “to get bitten” for its reporting–was the featured speaker at the Ambassador’s Fourth of July celebration, talking of his recent security cooperation tour in the US.  With this background for its critics in the Government, the press can’t help but wonder how far it can go.

And from March of this year: “Attacks on Kenyan Civil Society prefigured in Jubilee ‘manifesto'”

Kenyan Opinion Highlights–five columns of note (updated)

These are four  five recent columns from the Kenyan papers on different aspects of the current malaise in public affairs.  Each makes a general point which I think is of undoubtedly valid, but adds some perspective, analogy or point of fact that struck me as unique and particularly worthy of your attention if you missed it at the time:

“Media bang! NGOs pow! Who’s next?” from Muthoni Wanyeki in The East African.

“We expected better from ‘Defence Force'” from Wycliffe Muga in The Star.

“The Jubilee government’s ‘infantry thinking’ is leading it to intolerance” from Matuma Mathiu in the Daily Nation.

“Religious leaders are letting Kenyans down” from Fr. Gabriel Dolan in the Daily Nation.

“Protect media freedom for development” from Apollo Mboya in the Standard.

“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

Kenya’s ELOG delivers major report on election

The Elections Observation Group (ELOG) has published yesterday a lengthy report for the first time on its observation of the March 4 Kenyan election.  Having criticized the lack of transparency of aspects of ELOG’s observation and Parallel Vote Tabulation (PVT) program in the immediate post-election period, and cited criticism of their public communications in characterizing the PVT I wanted to quickly recognize the level of their follow-up here in their first release since March 9.

I will need more time with the report before discussing it in detail here as it runs to 78 pages plus attachments (and in the meantime I have recently rejoined the corporate world so I am back to avocational status on Kenya projects) but this deserves real attention and goes far beyond what has been published by the other major observation groups.

In the meantime, here is ELOG’s conclusion:

This report has delved deep into the electoral process starting the journey from the troubled times of 2007/2008 when the country burnt.  It has given an insight into the insidious political problems that Kenya has had to grapple with.

The report analyses the ills that the country must heal before it finally gets out of the political woods.  From negative ethnicity fueled by the “tyranny of numbers” to weak or unreliable institutions, the country has major problems to fix to ensure free and fair elections that are beyond reproach.

The report also makes it clear that although the restored faith in the judiciary and the fear of the ICC may have averted the violence that engulfed the nation after the 2007 general elections, faith in the IEBC and the judiciary was eroded following the Supreme Court ruling on the presidential petition filed by former Prime Minister Raila Odinga.

All stakeholders need to put in extra work and resources to help enhance the public understanding of their civil rights while enhancing the efficiency of all institutions charged with conducting elections in Kenya.

Peace Wall

Are “free and fair” elections passe in Kenya?

Uganda Debt NetworkHappy American Independence Day–it has now been a full four months since Kenya’s 2013 election, yet the results have still not been released by the Independent Electoral and Boundaries Commission.

The 2012 Kenyan Constitution mandates in Article 81: “The electoral system shall comply with the following principles––

(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or
corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate
and accountable manner.

Thus “free and fair” is the legal standard in Kenya. So what standard did the international observer missions that issued their reports on Kenya’s elections without waiting for the official results apply?

Note this from Mienke Mari Stetytler’s “Observing the observers: how the Kenyan election was verified” republished in the Daily Maverick this week:

One month after the election, on April 4th, the Carter Center released its postelection statement. “In spite of serious shortcomings in the Independent Electoral and Boundaries Commission’s management of technology and tabulation of final election results, the paper-based procedure for counting and tallying presented enough guarantees to preserve the expression of the will of Kenyan voters.”
Kenneth Flottman, an independent elections consultant, noted that not one of the observer missions referred to the elections as “free and fair” in their preliminary or post-election reports. “Holding back on calling the election ‘free and fair’ reflects the reality of the known problems with the election,” Flottman said. “At its most crass, this is a way to say that the government in power cheated some, but the opposition probably would have lost anyway.”

He conceded that “there is a tendency to apply lower standards to achieve a ‘free and fair’ election in Africa compared to other regions [of the world]. If anything, this makes the decision not to apply the label to this election in Kenya more noteworthy.”

David Pottie, associate director of the Carter Center’s democracy programme, contested this view. “It isn’t that African elections are held to a different (higher or lower) standard than countries elsewhere in the world,” Pottie said in an e-mail. “Rather, the Carter Center bases its assessment on a) Kenya’s international obligations and b) Kenya’s constitutional and legal framework.” He added that “free and fair” is no longer the “language of choice in international public law”.

Peter Visnovitz, EU election observation mission spokesperson, agreed: “The ‘free and fair’ phrase fell out of use because defining an election as ‘free and fair’ is very black and white—it requires a yes or no answer. Whereas, in fact, electoral processes are complex and it is very difficult to come up with a concept of ‘fair’ that would please everyone.”

Ilona Tip, operations director at EISA’s South African office in Johannesburg, explained that phrases like “transparent and credible” or “the expression of the will of voters” are now preferred.

.  .  .  .

“The long, long vote count” –new reporting from Kenya in Africa Confidential

Election Observers

The new “free article” from this month’s Africa Confidential says better what I have been getting at about the extraordinary delay in releasing the results from the Kenyan election, along with new independent reporting on the facts:

. . . In the longer term, such doubts could prompt a re-evaluation of foreign election monitoring missions in Africa. Some on the European Union mission, for example, had serious doubts about the integrity of the process, but it quickly endorsed Kenyatta’s election. By that stage, the EU had contributed more than 50 million euros (US$66 mn.) to the cost of the elections, reckoned to total over $400 mn. One diplomat in Nairobi joked that it was a case of ‘responsibility without power’, meaning that the EU would be blamed for a messy result due to its financial involvement but had no power to change anything.

The IEBC found that a million more votes were cast in the presidential election than in any other, Africa Confidential has learned, although all were held on the same day. Opposition and civil society activists have raised questions about such discrepancies for several months.

An unnamed electoral commissioner quoted in the Nairobi daily The Star appears to confirm their suspicions: ‘We are having sleepless nights reconciling the presidential results and those of the other positions. Over a million votes must be reconciled with the others and if the requirement is not changed, then it will cast the IEBC in a negative light.’

Kenyatta’s supporters reject the concerns, arguing that it is natural that voters were more worried about selecting the national president than candidates for other positions. Few neutrals see this as credible. In the past, dramatically higher turnouts in presidential elections than in others on the same day have been taken as a sign of ballot-box stuffing.

It seems far-fetched that over a million Kenyans would queue for several hours to vote and then ignore all of the ballots apart from the presidential one, especially since there was great excitement about the contests for new, powerful positions such as senator and governor. None of the many election observers we asked said they had seen significant numbers of voters putting a ballot paper in the presidential box but not the others.

. . . .

Please read the whole piece; this is important for the future of Kenya and for future elections everywhere.

 

[Updated June 3] “Kenya’s Elections: Observing the observers”

The new June issue of Africa in Fact published by Good Governance Africa based in South Africa has an article, “Kenya’s Elections: Observing the observers” by Mienke Mari Steytler.  I hope you will take time to read it.

The article included some observations on the work of the Election Observation Missions from interviews in Nairobi with yours truly as an independent consultant and responses and comments from others.  Here is one example:

The EU and the Commonwealth missions are also known for their independence and diplomacy, but others—particularly groups representing intergovernmental bodies—are less critical and independent, according to Mr Flottman. The AU mission had 69 observers and visited 400 polling stations throughout the country. The IGAD/ EAC/COMESA coalition deployed 55 observers to this year’s election.

Kenya is a member of the AU, IGAD, the EAC and COMESA, and they share geopolitical interests. Mr Flottman emphasised that observer missions representing the regional groupings are unlikely “to challenge any position of government”. For instance, the IGAD coalition mission declared the party nominations stage a success, Mr Flottman said. “They said the primaries were good. This is a nonsense statement. No one said that, come on.”

“Observer missions from the AU, SADC [Southern African Development Community], EAC, ECOWAS [Economic Community Of West African States]…because they are intergovernmental bodies, there is the ‘you rub my back, I’ll rub yours’ approach to certifying elections,” EISA’s Mr Owuor said, supporting Mr Flottman’s view. “In other words they were not very critical in an effort not to offend the current government.”

 

Update: on the issue of the use of the term “free and fair”, see The Star, “March 4 polls free, fair – EU”:

EUROPEAN Union election observers have said that the March 4 general elections in Kenya were “overally successful, free and fair” despite reported flaws.

They have however said the processing of the final results by the Independent Electoral and Boundaries Commission “lacked the necessary transparency as party agents and election observers were not given adequate access to the tallying centres”.

Speaking yesterday in Nairobi while releasing the final report, EU elections observation mission chief observer Alojz Peterle said there are several lessons from the difficulties that arose during the process.

 

Here is the link to the entire issue for pdf download:  Africa in Fact:  June 2013–Elections: Make Them Count.

So who is “Good Governance Africa”?  Here is an interview by Africa in Fact editor Constanza Montana of John Endres, CEO of this “new kid on the block” of organizations working to improve governance in Africa.

Update:  See also this recent piece from Think Africa Press by Dr. Judith Kelley at Duke: “Watching the Watchmen: The Role of Election Observers in Africa”:

. . . There are certainly sometimes questions about the conduct of outside observers.

Elections in Kenya unfortunately often provide a case in point and the latest is no exception. The EU monitors have been dragging their feet, with their final report now overdue. EU observer mission spokesman, Peter Visnovitz, reportedly promised the report would be made public by 4 May, but we are still waiting. Furthermore, in its initial press release (before the counting was complete), the EU was positive despite noting that the biometric voting process disenfranchised more than 3 million voters.

Why is the EU taking so long for its final assessment? The Kenyan Star claims that an internal report revealed strong reservations about the processing of the results. Meanwhile, the International Crisis Group (ICG) noted numerous problems and criticised the swiftness with which international observer groups pronounced all well in Kenya’s vote.

Earlier commotion around international observers in Kenya includes their muted response to the problems in the 1992 election; the mission was eager to send positive signals to calm fears of upheavals and resume aid. Their conduct in Kenya’s 2007 election also drew criticism from the UN Independent Review Commission; the body reported that monitors had at times based their claims on misunderstandings.

Time for an African solution?

International observers are clearly not perfect. But the final part of Obasanjo’s argument – that cure for the problem is for African monitoring groups to take over from international missions – rests on equally shaky grounds.

It is true that African groups have become more active. The AU, SADC, ECOWAS, and the electoral Institute of South Africa (EISA), among others, all now feature election observer missions. The AU started as far back as 1989, and the other groups have joined in the last 10 years or so.

That, however, is where the argument stalls. By and large, these groups are not ready to take over as the sole option for election observation on the continent. They have limited resources and experience, their sponsors or member-states are often not particularly democratic themselves, and most importantly, because these organisations are even more embroiled in politics on the continent, they are often more biased than non-African observers.

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.

It’s mid-May, do you know where your election results are?

The Kenyan election was held on March 4.  It is now May 16.  Here is the link to the website of the Independent Electoral and Boundaries Commission.  The IEBC announced its final presidential tally on March 9 and formalized its announcement of the identified winner on March 10.

Can you find on the IEBC website the election results for President, Governor and National Assembly?

Why not?

The United States spent many millions of dollars on these elections, including for observation efforts through the Carter Center and ELOG through NDI.  Likewise the European Union funded the EU Election Observation Mission.  The United States and other donors provided many millions for the activities of the IEBC itself through IFES.  And of course Kenya spent many of its own millions.

Yet, we have so much less information available from the IEBC now than we did from the disgraced and disbanded ECK in 2008.

So what is the IEBC waiting for?  And where are the observers?

Is there some reason that the IEBC fears publishing the results?  Could it be because the results show a huge and implausible “overvote” in the presidential race as compared to the number of votes cast in the other five elections at each polling station (and thus, ward, constituency and county)?  Did ELOG, the Carter Center or the EU EOM see large numbers of Kenyans cast ballots for president and spoil or discard their ballots in the other five races?

Six Races

Ballot Boxes in a line

“The West” is not a Country either–the U.S. and U.K. do not have the same interests in Kenya

The Star reports that:

President Uhuru Kenyatta is set to hold talks with UK’s Prime Minister David Cameron during his three day visit, the first to a western capital since his election.

Human rights activists in the UK are reportedly organising to hold demonstrations to protest what they say is a ‘hypocritical manner’ manner in which the British government has made a U-turn against in its stand towards the Kenyan government.

In the U.K., unlike in the U.S., the Kenyan election stirred a significant discussion in the national legislature, in this case the House of Commons. Here is the link to the Hansard or transcript from March 20.

The biggest difference in interests is that Kenya, a British colony within the lifetimes of current political leaders, is important to the British economy. Kenya is not very important to the U.S. economy. It might be someday, and the U.S. would notionally like to be more engaged economically in East Africa, and not only because the Chinese are; nonetheless, as of today the level of trade and investment is not a higher order immediate interest for the United States.

Further, in the global system that the U.S. has helped create, the U.S. does not really have the same relationships to even the largest companies that may be headquartered in the U.S. as the British and some other European nations still have with their business champions. Not to say that the State Department doesn’t want to sell Boeing v. Airbus, but there is no American equivalent of BAE, for example. Further, it is British rather than American companies that are the key players in Kenya in banking and finance, tea, horticulture, tobacco, printing, public relations consulting, etc.

As of the last few years, roughly 60% of the roughly 5,000 Americans living in Kenya, according to the State Department, were connected to missionary work. The British, not as much as far as I know. Moreover, there are perhaps five times as many British passport holders in Kenya as Americans.

The United States has a reported official established presence of more than two dozen federal agencies in Kenya, so we do have interests, but they are heavily weighted toward “global” security matters, along with international crime/drugs, etc., and what we might call diplomatic and security logistics. In other words, it is convenient for people to locate in and transit out of Nairobi to support a variety of functions that don’t relate uniquely to Kenya. Its an easier place to fly in and out of and has lifestyle appeal, along with being a locus of the same type of thing for people in other agencies, from other governments and international organizations. It is not that this geographic interest doesn’t matter, its just that it really is not of first order importance. A lot of the aid programs that we conduct in Kenya could easily be moved to other countries that are even more in need if less convenient, for instance.

When al Qaeda wanted to attack Americans and U.S. interests in East Africa, they bombed our Embassies in Kenya and Tanzania–not some critical infrastructure or something or someplace else that the Embassies are there to protect.

Kenya is a tourist destination with direct flights of modest duration from the U.K., but still no U.S. direct flights. In the U.S., Kenya is on the tourism “map” along with other various other locations in Africa, but at a much lower relative level; the British are Kenya’s greatest source of tourists. The British newspapers cover Kenya in a completely different way, and to a much greater extent, than American papers.

I have referred to Kenya as Americans’ favorite African country, but this is within the context of the whole “Africa is a Country” perception problem. It was one of the British princes who had the bad form to be quoted to the effect that “Americans don’t do geography”. The British still know their way around their former empire and distinguish Kenya from its neighbors much more readily than do Americans.

Certainly the British MPs wax eloquent about the key importance of training the British military in Kenya, noting that this was said to have played a major role in allowing Britain to mount its Falklands Islands operations some thirty years ago. Of course, realistically, the UK military in this century is primarily derivative and it is hard to see that the world would be so much different if the British had to train in one of the other former colonies–the U.S. for instance–instead of in Kenya. Military training in Kenya is surely good for British political and military morale, but i think it is the economic issues that really make Kenya uniquely important for the UK, whereas for the U.S. the scales tip overwhelming to the “security” direction.

Obviously the International Criminal Court is another area of difference. The British are members, along with other Western European nations, whereas the U.S. is with the Chinese and Russians in standing outside (whether we are nominally favorable or nominally derogatory seems to depend on which of our parties is in power but we seem to have a fixed commitment to stay out). In this sense, the election of Uhuru Kenyatta and William Ruto is in one particular respect inconvenient for the British in a way that is not as challenging for the United States, but given the ordinary primacy of the specific over the general, and the immediate dollar or pound over longer term security in democratic politics, it is not really surprising that the UK has been more aggressive and quicker in seeking publicly to “get right” with Uhuru Kenyatta following his elevation to the Kenyan Presidency than has the United States.