My series of “Lessons Learned” posts about U.S. engagement with the Kenyan election, coinciding with the “pole pole” release of public records under my Freedom of Act requests:

Lessons for Kenya’s 2012 elections from the truth trickling out about 2007–new cables from FOIA (Part One) Aug 15, 2011

Lessons from 2007 elections and the new FOIA cables–Part Two

Lessons from the 2007 Kenyan elections and the new FOIA cables–Part Three

Part Four–Lessons from the 2007 Kenyan elections and the new FOIA cables

Part Five–Lessons from the 2007 Kenyan elections and the new FOIA cables

Part Six–What did the Ambassador Report to Washington on the day after the 2007 Elections?

Part Seven–One Last FOIA Cable on the 2007 Exit Poll

Part Eight – New Kenya FOIA documents: Diplomacy vs. Assistance Revisited or “Why Observe Elections if We Don’t Tell People What We See?”

Part Nine – New Kenya FOIA Documents: What Narrative Was the State Department’s Africa Bureau Offering the Media While Kenyans Were Voting? And Why?

Part Ten – FOIA Documents from Kenya’s 2007 Elections – Ranneberger at the ECK: “[M]uch can happen between the casting of votes and final tabulation of ballots and it did”

Freedom of Information Series (Part Eleven): Better to Learn More Lessons from Kenya’s Last Elections After the Next One?

Africa Bureau under Frazer coordinated “recharacterization” of 2007 Kenya Exit Poll showing Odinga win (New Documents–FOIA Series No. 12)

Why is IRI’s report on the Kenya 2007 Exit Poll missing from the USIAD Development Experience Clearinghouse?  (FOIA Series Part 13)

The simple truth of the allegedly “contested” Kenya 2007 exit poll–what IRI reported to USAID (FOIA series part 14, War for History series part 19)

——————————-

This blog includes a series of posts about documents I have recently received from the State Department under the Freedom of Information Act about our interaction with the 2007 Kenyan election. Let me put this information, and my role in publishing it, in context.

First, I do want to remind that a baseline principle of American governance is that the records of the conduct of the business of the United States are in general public–they belong to those of us who are Americans. It would belie our notion of being self-governing if it were otherwise. We have provided by law a broad system by which certain records can be “classified” and kept secret, generally only for specified periods of years.

(As a condition of my employment as a lawyer in the defense industry, I have had a “security clearance” for roughly twelve years and am separately accountable by oath and law to abide by these rules and am required to be found to be loyal to my country. The clearance was incidental to my employment with the International Republican Institute in Kenya to manage democracy assistance programs on unpaid leave from industry. In Kenya I did not reference my clearance and did not have access to any classified material.)

I sent three Freedom of Information Act requests to the State Department back in the late summer/early fall of 2009. A FOIA request simply requires that a U.S. government agency find those records requested, determine those that are not exempted under some broad categories, and produce copies for the requester. It does not in itself generate new public information or of itself require the disclosure of information that is not already “public” as a matter of right. The status of the person requesting the records and the nature of his or her interest is not relevant to whether or not the information is to be released–my involvement in the matter doesn’t entitle me to more than anyone else is entitled to under FOIA.

Let me briefly explain how I came to send these requests.

After the New York Times story on the Kenya exit poll ran that January (2009) the online Slate magazine news digest noted the story. IRI published a comment on Slate criticizing the Times for not waiting to run its story until the State Department Inspector General had investigated the matter at IRI’s request. On this basis, I decided to submit complaints about the matter to the compliance “hotlines” for the State Department and USAID Inspectors General so that the facts that I was aware of would be considered and I hoped investigated. Eventually I was told by the Acting IG for the State Department that my “hotline” matter, rather than being investigated, had been sent to the State Department Africa Bureau. (This struck me as irregular–if I had wanted to simply write the Africa Bureau, rather than go to the IG, I would have done so.)

In July, I attended an event at the National Endowment for Democracy in Washington with Kenyan parliamentarians, including Speaker Marende and others whom I knew from my time in Kenya, and prominent “Kenya Watchers” including Joel Barkan, Makua Mutua and Carl LeVan and representatives from U.S. and Kenyan civil society.

I just wanted to come and hear the program and see old friends and acquaintances, with no expectation of having any public role. Nonetheless, it seems that after I “RSVP’d” the regional director from IRI at the time was added to one of the panels and used her moment to denounce as a “liar” anyone who said that IRI had withheld the exit poll “for political reasons”. Lots of people from our government, as well as all sorts of Americans interested in African affairs were there. Congressman Payne, who was chairman of the Africa Subcommittee of the House Foreign Affairs Committee, then brought up the exit poll as one aspect of what he considered to be a poor handling of the failed election process by the U.S. The Kenyan Ambassador brought it up in questions and said that the matter needed to be resolved.

When I was called on to ask questions of Speaker Marende and the Parliamentarians, I “turned the other cheek” to IRI and simply asked based on the problems with the election what the Kenyans would ask of the Americans in the room in order to best assist them in the future. (While I had in my mind the notion of better technical support, the reaction from the Kenyans was that they would like the kind of money from the U.S. that we were giving Egypt–that Kenya was important and if they had that kind of funding they could do lots of good things.)

Digesting that experience back home, with the Inspector General having “punted”, I decided that the failure at the ECK and how I and others responded to the whole situation, exit poll included, was enough an inescapable part of my own role and responsibility at that point that the least I could do was ask for a part of the public records from the State Department and so I sent my FOIA requests. I would have been quite happy to know that someone else better situated was taking this up so that I didn’t need to.

Since that time in 2009, we have had some progress and some more controversy. The coalition government is still in place; a new constitution was passed and has been partially implemented, but there was another controversy involving the campaign. As I noted in a previous post, the Daily Nation reported that the USAID Inspector General found that a significant amount of U.S. funding for the electoral process improperly found its way into supporting the “Yes” campaign. We now have a new Ambassador, and Kenya a new but untested Electoral Commission. The election date is uncertain and the constituencies and the new units of government and senate are to be established. A new judiciary is a work in progress. Somalia is as much a work in progress as ever and Kenyan troops have gone to war there but are just now being brought into the AU AMISOM mission. The rest of the neighborhood is on balance a bit less stable than in 2007.

Just as the consequences of the post-election violence remain to be seen, except for the victims, no one has been charged or prosecuted regarding the conduct of the last election.

Irrespective of legal issues, the political and policy lessons of 2007/08 will remain elusive until the facts are better understood. I would be pleased if I am able to help move the needle a bit forward by writing about what I have learned.

April 2012