Asking for a friend.
Asking for a friend.
From: Nairobi, US Embassy Press Office
Sent: Tuesday, May 24, 2016 4:59 PM
Heads of Mission on Recent Violent Demonstrations in Kenya
May 24, 2016
We are deeply concerned by the escalation of violence during the demonstrations in Kenyan cities on 23 May around the future of the Independent Electoral and Boundaries Commission (IEBC). The deaths and injuries of Kenyan citizens were tragic and unnecessary. We urge the Government of Kenya to investigate the actions of the security services and to hold accountable anyone responsible for the use of excessive force. We call on all demonstrators to act peacefully.
Violence will not resolve the issues regarding the future of the IEBC or ensure the 2017 elections are free and credible. We strongly urge all Kenyans to come together to de-escalate the situation and to resolve their differences, taking every opportunity for inclusive dialogue. Kenyans should talk, and any compromise must be implemented in accord with Kenya’s Constitution and the rule of law. As partners, we stand ready to support such a dialogue in any way that is useful.
# # #
This statement has been issued by the following Heads of Mission in Kenya:
Robert F. Godec
Ambassador of the United States
High Commissioner for the United Kingdom
Ambassador of Germany
High Commissioner for Canada
Ambassador of Sweden
Ambassador of Denmark
Victor C. Rønneberg
Ambassador of Norway
High Commissioner for Australia
Ambassador of the Netherlands
Ambassador of France
Roxane de Bilderling
Ambassador of Belgium
Stefano A. Dejak
Ambassador of the European Union
US Secretary of State Kerry issued a short perfunctory statement of congratulations to Kenyans for Jumhuri Day, mentioning his visit to Kenya in May, but not President Obama’s visit in July.
I get tired of expressing my disappointment in my government’s approach to relations with Kenya’s government and informal power structure and I did not have much to say about Obama’s visit. One particular item that got marginal attention in the Kenyan media and that I chose to ignore was an actual signed agreement between the Government of Kenya and the Government of the United States styled as a “Joint Commitment to Promote Good Governance and Anti-Corruption Efforts in Kenya“. There is actually a fair bit of detail to this agreement in terms of process, meetings, communications, and such, aside from the platitudes suggesting that the same people with life-long track records of comfort with corruption in Kenya were suddenly born again GooGoos (GooGoo being an old American slang term for “good government” types, referring to reformers who opposed corrupt urban political “machines” in large cities such as Chicago and my hometown of Kansas City).
In spite of the temporary boost to the UhuRuto administration from President Obama’s Nairobi visit, there has been a rising chorus of Kenyan grassroots umbrage to the extreme corruption levels as more and more scandals have emerged without, still, any actual sucessful prosecutions of major figures (meaning major players in either business or politics, or most likely both together) for any of the known thievery.
In the wake of the Pope’s visit, Uhuru–who has made conspicuous use of Roman Catholic photo props in his campaign and PR imagery since the contested 2013 vote–was said to have been moved or shamed to take some action, along the lines of the kinds of things that he had already agreed to do in his July agreement with the United States, to fight “graft”. Perhaps. “You just never know,” as some older conservative friends in Mississippi said when I tried to explain back in 2008 that everyone in Kenya knew that Barack Obama was born in the United States, not in Kenya.
What about on the United States side? Does our government really want to change things now? Here is what I would need to see to be persuaded that we have decided to change the game: 1) public follow up on the Goodyear bribes paid to public officials in Kenya [months have gone by now with no prosecutions in Kenya reported in the press after the parent company in the US turned itself in to the SEC and the Justice Department]; 2) public follow up on the bribery of the Independent Electoral and Boundaries Commission in the 2013 election procurements [I finally submitted a Freedom of Information Act (“FOIA”) request a few months ago to USAID on the procurements we paid for through IFES and for our dealings with the vendor Smith & Ouzman which was convicted in the UK of bribing the Kenyan IEBC–no documents or substantive response yet]; 3) public follow up on the issue of unnamed Kenyan officials being among those bribed by Chinese interests at the UN in New York resulting in U.S. indictments.
It has been credibly reported based on leaks that the new “visa bans” on travel to the US by Kenyan officials are quite extensive. Great. But we do this type of thing, if not quite to this extent, periodically. Over the years it obviously has not added up to any strategic progress even if there may (or may not) have been a few tactical successes here or there. Bottom line is that I don’t think you can really fight corruption with secrecy–you have to chose your priorities. And for my government to ignore the cases that have been publicly exposed in which we have some direct stake leaves me unconvinced that we have actually changed our priorities from 2007 and 2013 when I was in Kenya to see for myself.
One thing that we could do to make sure we are “practicing what we preach” on the governance side is for Congress to have oversight hearings about how we are carrying out the July 25 “Joint Agreement”.
The Governments of the United States, the United Kingdom and Switzerland welcome recent actions by the Kenyan Director of Public Prosecutions to combat corruption by ordering prosecutions in Kenya linked to the decade-old Anglo Leasing scandal. These orders and the subsequent arrests were important steps forward by the Government of Kenya in the critical fight against corruption. We encourage the government to build further on these actions, to include through independent and vigorous investigations of all allegations of corruption, and through fair trials and equal treatment under the law for all those charged.
The Governments of the United States, the United Kingdom and Switzerland will continue to work with the Government of Kenya as it seeks to tackle corruption and to build a democratic, secure, and prosperous future.
The successful prosecution of Smith & Ouzman, Ltd. and two of its officers by the U.K. Serious Fraud Office for paying bribes to Kenyan election officials to obtain contracts with Kenya’s Independent Electoral and Boundaries Commission (IEBC) should be a wake-up call in Washington. Smith & Ouzman Chairman Christopher John Smith and Sales and Marketing Director Nicholas Charles Smith were sentenced last week and sentencing of the corporation is upcoming.
Ironically, perhaps, “capacity building” and procurement systems, along with the subsequently abandoned electronic results transmission system, were touted by U.S. Ambassador Ranneberger as features of the U.S. pre-election support in Kenya in 2007:
* “Developing the capacity of the Electoral Commission of Kenya (ECK) lies at the heart of our strategy. The USG funded International Foundation for Election Systems (IFES) has been providing support to the ECK since late 2001. Activities focus on providing appropriate technology for more efficient and transparent elections administration while improving the skills of the ECK technical staff. This support additionally includes capacity building and technical assistance to support election administration. Technical assistance includes computerization of the Procurement and Supplies Department, which is responsible for printing and distributing election materials. Assistance will also support implementation of the ECK’s restructuring plan, strengthening logistics capacity, and accelerating the transmission and display of results.”
From “Lessons for Kenya’s 2012 elections from the truth trickling out about 2007-New Cables From FOIA (Part One)” quoting a December 14, 2007 Ranneberger cable describing U.S. preparations for the Kenyan election.
For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC. Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.” “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013. See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.
For a detailed narrative and links on the U.K. Serious Fraud Office case, see Corruption Watch-UK/Trial Monitoring: “Chickens come home to roost: the Smith and Ouzman African bribery case”:
The most serious allegations relate to 7 contracts with the IIEC in Kenya between 2009-2010, worth £1.37 million, where S&O made unusually high commission payments of between 27% and 37% of the contract price. Part of prosecution’s case was that the commission of £380,859 over 18 months paid to the agent, Trevy James Oyombra, was exorbitant, and clearly designed to include payments for officials.
The contracts in Kenya included ballot papers and voter ID cards for By-Elections, 18 million voter registration cards, Referendum ballot papers, and other products relating to elections, such as card pouches, OMR forms, ultraviolet lights. It was a feature of several of these contracts that the S&O subcontracted out the printing work to other companies, in one case to a Chinese company that delivered the goods for less than half the cost of the contract price.
This raises questions about whether S&O were compliant with procurement rules and whether it compromised the security and integrity of the electoral process by subcontracting.
Additionally, on several contracts, S&O delivered significantly less papers than they were contracted to do raising the question of whether the integrity of the electoral process was compromised. It was also a feature of some of these contracts that prices were inflated significantly after award of contract. In all the contracts, the alleged bribes were paid for by the Kenyan tax payers, as the cost of commission was reflected in the contract price.
The specific contracts were as follows:
- June 2009 – Shinyalu and Bomachoge By-Election. S&O were to provide voter ID cards, and ballot papers – although in the end they provided only 142,000 papers against the 200,000 ordered.
- January 2010 – 18 million voter registration cards. Once S&O had been awarded the contract they subcontracted the production of half the forms to another company.
- March 2010 – contract for electors’ card pouches which S&O subcontracted to a Chinese company who delivered them for less than half of the contract price.
- May-July 2010 – three different By-Election ballot paper contracts (South Mugirango, Matuga and Civil By-Elections) – where the contract price in each case was increased substantially (sometimes by 50%) after award of contract to permit bribes to be paid. The agent advised S&O against providing “chicken” to visitors to their factory in 2010 as there were other officials not from the IIEC who he said they shouldn’t give “the wrong picture” – undermining the defence’s argument that the company was just doing things the “African way”. Significantly the company again delivered less quantities of ballot papers than were required in each of these three contracts – in the case of the Civic By-Elections some 40,000 less than ordered.
- July 2010 – a contract to provide 14.6 million Referendum Ballot Papers in which S&O worked out an uplift per ballot paper to factor in the bribery.
- July 2010 – 1.5 million OMR correction forms and 1000 nomination forms in May.
- July-December 2010 – ultra violet lights and other Parliamentary and Civil Ballot Papers.
Electoral officials at the IIEC were on several occasions described by the agent, Trevy, as trying to make money before they left the IIEC and went back into government. The agent described the officials at on stage as anxious and “broke”, and “they are desperate for the chicken”. The agent also said that officials told him that S&O needed to “be discrete since all peoples eyes and the government intelligence are watching their every move even on the phone to ensure transparency”.
The Kenyan officials named in court as recipients of payments were as follows: IIEC: Kenneth Karani (chief procurement officer); David Chirchir (IIEC Commissioner); James Oswago (IIEC Chief Electoral Officer); Dena; Kennedy Nyaundi (Commissioner); Gladys Boss Shollei (Deputy CEO); Issack Hassan; Hamida, Tororey and Sang.
Several of these officials are still in government: David Chirchir is current Energy Minister in government, and Issack Hassan is the current Chairman of the Independent Electoral and Boundaries Commission (IEBC) which took over from the IIEC.
The scope of the successfully prosecuted bribes to Kenyan officials, in particular the Kenyan Interim Independent Electoral Commission, now Independent Electoral and Boundaries Commission, was such as to suggest the corruption was not unique by time or geography.
Although USAID, as referenced in the State Department cable quoted above, has provided millions for the operations of the Electoral Commission of Kenya and its successors on a regularized basis since embedding IFES in the Electoral Commission of Kenya, ECK, in 2001, I do not know whether there was any direct U.S. funding, or U.S. funding through a “basket” administered through UNDP or otherwise, implicated in the specific acquisitions involved in the prosecution. At the least, given the level of U.S. funding for the Kenyan elections through this time period, the U.S. indirectly underwrote the ability of the Kenyan election officials to corruptly overpay for those things the U.S. was not helping to pay for.
The time period during which the offenses at issue in this U.K. prosecution occurred was 1 November 2006 through 31 December 2010. Also during this time, for instance, IFES awarded a more than $3.4M competitive procurement for USAID to Smith & Ouzman for polling booths for Sudan’s National Election Commission for 2010 elections. Although there may be nothing at all irregular, it is worth noting that Smith & Ouzman has generally been identified as a “printing company” and its election related products and services marketed on that basis.
From a 2008 IFES election materials “buyer’s guide”:
Providing the Ballot — Supporting Democracy Worldwide Smith & Ouzman, Limited, has been established for more than 60 years and is the globally trusted name in security printing, providing tailored secure ballot solutions to electoral commissions and authorities from Afghanistan to Zimbabwe, and many places in between. Our team of professional staff has considerable experience in election projects and ensures that ballot papers incorporate devices to protect against electoral fraud and are packed for distribution directly to polling stations. Smith & Ouzman, Limited is the company that provides you with security, integrity and reliability. ● Election Experience Afghanistan, ballot papers; Benin, indelible ink; Botswana, ballot papers; European Union, ballot papers, postal ballots; Ghana, equipment; Kenya, ballot papers, registration forms, voters cards; Kosovo, ballot papers, registration forms, postal ballots; Malawi, ballot papers, UV lamps; Mauritania, ballot papers; Namibia, ballot papers; Nigeria, ballot papers; Somaliland, ballot papers, indelible ink; Tanzania, indelible ink, security envelopes; Uganda, ballot papers, indelible ink; United Kingdom, ballot papers, poll cards, registration forms, postal ballots; Zambia, ballot papers, indelible ink; Zimbabwe, ballot papers.
By NJONJO MUE, as printed at Business Daily, “Smith & Ouzman director’s crime goes beyond ‘chicken’ offer to IEBC officials”:
Mr Mue is programme adviser at Kenyans for Peace with Truth and Justice.
We write this letter to give our perspective on the impact of corruption on elections. We do this in the hope that you will bring these matters to the attention of the court so that they may inform its deliberations on the sentencing of the directors and the company and the subsequent confiscation hearing.
We would also like to strongly suggest that the SFO call expert witness on this point so that the court can be fully informed about it. We would be happy to provide relevant names of experts in this area should the SFO need such assistance.
KPTJ was formed in the wake of the widespread violence that engulfed Kenya following the disputed 2007 presidential elections.
More than 1,100 people were killed, over half a million displaced from their homes, hundreds of women and men sexually assaulted as well as property worth billions of shillings destroyed in the chaos.
Kenya was saved from a full-scale civil war only by international mediation efforts led by former UN secretary-general Kofi Annan.
The mediation agreed on a raft of measures to address both the immediate crisis and the long-term underlying issues to bring permanent stability to the country, including constitutional and institutional reforms.
A commission of inquiry appointed to review the elections recommended a complete overhaul of the electoral process, including the disbandment of the then Electoral Commission of Kenya (ECK) and a fresh registration of voters.
The ECK was replaced by the Interim Independent Election Commission, the body whose officials Smith & Ouzman subsequently bribed to obtain business from.
The above background is important in order to demonstrate a number of key points.
First, both Kenyans and the international community invested a lot of time, money and hard work to ensure that the devastating political violence of 2008 would never occur again.
This was done through reforming the election management body and the appointment of new commissioners, among other measures.
For Smith & Ouzman to casually bribe the new poll officials and justify it by claiming that they were just doing business the “African way” is not just an insult to Kenyans and Africans, it is to dance on the graves of those who paid the ultimate price due to the failed elections.
Second, Kenya has frequently paid a high price in terms of lives lost and property destroyed as a result of disputed elections, the post-election violence being only the most extreme example.
Political violence in turn is often the direct consequence of having elections managed by officials of questionable integrity who cannot be trusted to deliver a free and fair election.
When Smith & Ouzman bribes poll officials to obtain contracts for printing election materials, the country not only incurs financial loss due to the inflated price, but also it ultimately pays a much higher price in terms of the loss of integrity of the electoral body and the subsequent instability and political uncertainty that the loss brings.
As far as financial consequences are concerned, it is notable that Kenya’s elections have been said to be among the world’s most expensive per capita, in spite of their generally poor quality.
Third, an election body, like a bank, survives on public trust and derives legitimacy and credibility not from the technical sophistication of their poll materials, tools and procedures, but from public faith in its impartiality, competence and integrity.
The bribery claims against Kenyan poll officials has resulted in loss of public faith in the agency and may lead to disputed elections and violence in future.
Somaliland and Puntland are continuing to deploy more troops in the disputed border regions of Sool and Sanaag. A peaceful, mutually accepted resolution of these disputes with the support of the local population would be a gamechange for the region which has seen these conflicts and tensions periodically escalate for years.
I’ve spent some time looking at “Official Development Assistance” (“ODA”) numbers for Africa to test my perception that the U.S. seems, for some reason that is hard to pin down, to give an inordinate amount of “development” money to Kenya.
Sure enough. Going through the ODA summaries by country from the OECD, for each of 47 countries in continental Africa, we find plenty of verification of this. The U.S. is the leading bilateral ODA donor for 25 of the 47, including Kenya (Kenya’s number two donor is Japan). Kenya is the number three recipient of bilateral ODA from the U.S. for a 2010-2011 annual average (the most recent listing) of $642M, behind only the Democratic Republic of Congo at $1,053M and Ethipia at $791M.
On a per capita basis this is $15.53 for DRC, $15.43 for Kenya and $9.34 for Ethiopia. What about “need” based on poverty? PIn the DRC the Gross National Income (GNI) per capita is $190; in Ethiopia $400. Kenya, on the other hand, has a GNI per capita of $820, more than double that of Ethiopia and well more than four times that of the DRC.
Across the continent as a whole, Kenya ranks ninth in per capita U.S. ODA. Three countries of those getting more per capita are special cases: Liberia and South Sudan, post-conflict states where the U.S. has a special historic relationship and responsibility relating to the founding of the country itself and Libya, an immediate post-conflict situation where the U.S. government was instrumental in supporting the removal of the prior regime. All of the recipients ahead of Kenya except for the DRC have relatively small populations.
Among the five countries of the East African Community, Kenya receives both the largest amount and the most per capita in ODA from the U.S., even though its GNI per capita is by far the largest:
Country GNI Per Capita U.S. Bilateral ODA Per Capita Rank/Reference
Burundi $250 $48M $5.58 2 (1-Belgium 161M)
Kenya $820 $642M $15.43 1 (2-Japan $139M)
Tanzania $540 $546M $10.74 1 (2-UK $219M)
Rwanda $570 $167M $15.32 1 (2-UK $121M)
Uganda $510 $388M $11.24 1 (2-UK $163M)
And a sampling of other countries of interest:
Somalia —- $90M $9.38 2 (2-UK $107M)
C.A.R. $470 $16M $3.56 3 (1-France $29M)
Malawi $340 $140M $9.69 1 (2-UK $126M)
Mali $610 $232M $14.68 1 (2-Canada $106M)
Niger $360 $97M $6.02 1 (2-France $56M)
Chad $690 $124M $10.75 1 (2-France 45M)