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

Back last May I had checked in with the State Department’s Freedom of Information Office about the status of outstanding documents from my 2009 FOIA requests regarding the 2007 Kenya elections.

At that time the FOIA Office wrote me that State Department documents about the IRI and USAID Exit Poll had finally been received from the Africa Bureau, presumably including the U.S. Embassy in Kenya, in addition to just the Central Records in Washington. (From what I had been told by the FOIA Office previously, the Africa Bureau did not respond for well more than two years following my original FOIA submission.) The estimated additional time to review and release documents was six months, to November 30, 2012.

November 30 came and went with no documents. i wrote to request release on an expedited basis due to the new elections upcoming but got no response. Checking back I was eventually given a new date of May 2013, after the new Kenyan elections.

A lot of people in a variety of capacities in the U.S. government, or otherwise funded by U.S. taxpayers, are working on matters involving the March Kenya elections. Likewise, from other donor governments and international organizations. And of course Kenyans who bore the actual effects of the disaster in the last elections have the most at stake in the new elections. Why further delay disclosing and addressing the documentary record from 2007?

Impunity for election fraud in 2007 makes the 2013 Kenya elections riskier. Even though there will be no accountability now, Americans and Kenyans should at least know as much as possible about what happened.

When did Ruto and Uhuru fight? And why is the “Uhuruto” alliance allegedly so surprising?

Today is the third anniversary of the “AfriCommons Blog”, so let me celebrate by being a bit direct.

I lived in Nairobi with my family during the last Kenya elections campaign and the duration of the post-election violence. I certainly saw both Uhuru and Ruto in Nairobi during the uncertain post election period, and they were on local television as well–serving in Parliament together and carrying out their functions as members of the political class. Never saw either with a police rifle, a panga or a can of petrol. No recollection of seeing either of them in the slums or other types of neighborhoods where most of the violence in Nairobi took place.

Rather, the ICC has accused them of being involved in the incitement, organization and funding side of the organized part of the post election violence or PEV.

I don’t recall ever seeing any indication that the two had any type of personal animosity between them or couldn’t get along between themselves. Could be, but not necessarily obvious from the context of funding militias and gangs in the hinterlands on opposite sides of a political tussle. In terms of the political debate it was Martha Karua that squared off with Ruto during the ECK “vote counting” at the KICC and the post-election negotiations.

When I moved to Kenya in June 2007, less than seven months before the elections, Uhuru and Ruto, along with Mudavadi, Raila and Kalonzo were in ODM-K (later to become ODM) and all were running against each other for the opposition presidential nomination through their mutual coalition. Uhuru was KANU leader and titular Leader of the Opposition in Parliament. They were all rivals, but all against Kibaki. Uhuru and Kalonzo split off the main ODM, with Kalonzo running as ODM-K nominee as a “third party” and Uhuru switching sides to Kibaki/PNU, presumably at least in part because he could not hope to get re-elected to his seat in Parliament in Central Province otherwise. (And maybe he was looking to 2012/13.)

If there was a question of anyone not getting along personally, it was more about Kalonzo and Raila than Uhuru and Ruto.

It just seems naive to me to be especially surprised that Uhuru and Ruto would hook back up–and most especially so when they are in a serious jam together with the ICC charges.

Did Uhuru oppose Moi because of Moi’s role in the related violence in the Rift Valley around the 1992 and 1997 elections? Seems to me he stayed in KANU and was anointed as Moi’s candidate for the succession in 2002. Perhaps if he did, as accused, get involved in using the Mungiki in post-election violence in Naivasha and elsewhere, could it have been for instrumental political reasons rather than some atavistic “tribalism”? Has Ruto ever supported a non-Kalenjin candidate before? (hint: Uhuru in 2002)

“And the beat(ings) go on . . .”; as 2007 bleeds into 2013, what would it take for Human Rights Watch and others to make Kenyan politics less deadly?

The latest Kenya release from Human Rights Watch, dated yesterday, decries the terrible beating of Kenyan activist Okiya Omtatah Okoiti.

Omtatah, executive director of Kenyans for Justice and Development (KEJUDE) Trust, a local NGO that advocates for transparency and accountability, was attacked by two unidentified men in central Nairobi. He lost six teeth and suffered serious injuries to his face and the back of his head, which required surgery. Omtatah told Human Rights Watch and ARTICLE 19 that the attackers demanded that he withdraw a lawsuit he filed to demand accountability in the procurement of biometric voter registration (BVR) kits because of corruption associated with the process.

“This vicious attack was clearly meant not just to intimidate Omtatah but to seriously injure him – and perhaps even to kill him,” said Leslie Lefkow, deputy Africa director at Human Rights Watch. “The aim seems to be to stop his work on corruption in the procurement of biometric voter registration kits for the upcoming elections.”

Certainly this is a crucial and timely issue in working toward integrity in the upcoming Kenyan election and in protecting an activist who took a big risk in pursuing legal action against election-related corruption. So kudos to Human Rights Watch and Article 19 for calling attention to the attack. Unfortunately, it is hard to imagine that anything will actually happen as a result of this statement that “[t]he Kenyan authorities should promptly and thoroughly investigate a serious physical assault . . . and bring appropriate charges.” Of course, they should–that goes without saying; of course. they won’t.

Why won’t they? Are they confident they can wait it out and the outside actors and international players who care about Omtatah now will move on to the next outrage, the next victim, without really disrupting the vicious cycle?

Why would I suggest this? Not to be gratuitously critical of Human Rights Watch or any of the many organizations trying to support human rights defenders. Rather I say this on the basis of my own hard-earned experience with well-intentioned failure in dealing with election fraud and violence in Kenya in 2007/08. I moved my family to Kenya for a year to help support democracy in the last election cycle–we were able to take in a couple of displaced families for a few months after the election, and help a few others a bit, but nothing that I did in my NGO work really changed anything as far as upholding democracy. My organization, IRI, issued a report noting the election fraud, in July 2008, and in August 2008 released the exit poll showing that voters at the polls on election day reported favoring the opposition, before the mark-ups of the tallies for the incumbent at the Electoral Commission in Nairobi afterwards. But these reports were months too late to really matter. It is going to take more to make a difference in the brutal world of Kenyan politics.

So how does Human Rights Watch yesterday describe what happened with the 2007/08 election situation:
Continue reading

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”

Westlands Primary-Line to Vote X

Another document released to me from my FOIA request to the State Department for documentation of the State Department observation of the Kenya elections is a cable from Ambassador Ranneberger from January 2, 2008 reflecting what he witnessed at the ECK. This was primarily declassified, with a few redactions.

Here are key excerpts, which deserve to be read carefully by those preparing to try for better elections this time.  It pretty well clarifies what Ranneberger saw as a credentialed observer at the ECK, and what he wanted to do, or not do, about it.

2. As previewed in ref B, much can happen between the
casting of votes and the final tabulation of ballots and it did.
This message recaps developments reported in refs, provides current
state of play, and discusses next steps. Much of our reporting
during the past three days has been done by phone given our
intensive focus on operational issues, particularly efforts to
promote a positive outcome to the election imbroglio.

3. Elaborate procedures were in place (much of it with U.S.
support) to ensure transparency and accountability of the ballot
tabulation process. . . .

5. ECK officials and observers pursued these
allegations to some extent, but the ability to do so was
constrained by lack of time, original data from polling
stations, and by the behavior of a number of ECK officials
who delayed returning results and submitted incomplete or
clearly altered documentation. Moreover, the ECK has no
authority to open ballot boxes; only the courts do. During
the night of Dec. 29, ECK officials together with
representatives of the PNU and ODM, reviewed the tabulations,
but neither side was satisfied that the review had fully
addressed their concerns. The ECK partial review of the
irregularities was also of questionable credibility, given
that all of the commission members were appointed by the
Kibaki government, and a number of them were suspected of
being clearly biased and/or involved in doctoring at ECK
headquarters. The Chairman of the ECK, Samuel Kivuitu, who
was widely respected, was surrounded by staff of uncertain
reliability and competence. It is worth noting that
parliamentary results were not disputed because they were
tabulated and announced at constituency tabulation centers,
thus allowing no interference at ECK headquarters.

6. Kivuitu has only limited authority as head of the
ECK. The ECK works on a majority vote system. It is also
important to note that the ECK is required by law to announce
the results as received at the ECK from the tabulation
centers. Some obvious irregularities like reporting
unrealistically high turnout or clearly altered results can
be rejected. There was, however, only a rejection of the
results in one constituency in which violence resulted in
destroyed ballots. Other alleged irregularities, such as
announcing results that ECK personnel personally inflated
should have been, could have been, but were not corrected. At
one point Kivuitu told me that his concerns about the
tabulation process were serious enough that “if it were up
to me, I would not announce the results.” In the end, he
participated with other commissioners in an announcement late
on the 30th, which turned rowdy when Odinga walked with armed
bodyguards into a room packed with observers, including me,
party agents, and media Kivuitu and the other commissioners
retreated to their upstairs offices, where the results were
announced. Kibaki was quickly sworn in (this was Continue reading

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

We are in full swing now in the 2012/13 presidential campaign in Kenya, but unfortunately there remains much confusion, misunderstanding and simple lack of awareness over what actually happened in the 2007 elections.  I have gotten a couple of additional partial releases of a few documents from the State Department in December and again this month from my 2009 Freedom of Information Act requests about the State Department’s 2007 election observation and the exit poll, and since we are running out of time to get ready for the upcoming elections, it seems time to start introducing some more of this information.

New this month is the release of a grand total of three documents purporting to be the entirety of the releasable documentation from the Africa Bureau (as opposed to the cables in the central State Department records) related to and derived from the State Department led observation of the Kenya elections.  One (undescribed) document was withheld in full bringing the total Africa Bureau documentation to four items.  In other words, in sprite of the fact that “160 Embassy officials in 56 U.S. Embassy observation teams successfully deployed nationwide to monitor the elections” according to the election day Africa Bureau press guidance (one of the documents released) they did not generate records.

The question could be raised then whether the point of the State Department observation through the Embassy became not so much to observe as to be observed observing.  Being observed observing gives an extra patina of gravity to whatever narrative you wish to present about the election afterwards; and who can question without an independent look at your data? [or an independent exit poll?]

Again, this highlights the difference between the diplomatic function with its command structure to carry out foreign policy with its multiplicity of interests and objectives, but clarity in who is being served, on the one hand, and the function of an independent international election observation mission, funded as a matter of “democracy assistance” intended to serve the very much narrower interest of the internal democratic process in the host country to advance values shared by the funding nation/s and a broader international community (and accepted in theory by the host country).

The one document released that substantively describes observation of voting by State Department personnel is a November 20, 2007 email which is a headquarters “readout” of a video conference held “with Post to discuss the experiences of Post’s first-ever observation of the political primary process in Kenya.”:  Here is the text:

The Observation Effort:
*21 teams (total about 60 people) deployed to the field. This is our first time observing the primaries. We expect to deploy about 50 (100+ people) teams to the general elections as part of the larger international observer effort. The EU plans to deploy 150 people.
*These will be Kenya’s 4th multiparty elections but only the second “free and fair”.

Negatives Observed:
*The process was very poorly organized. We would say the the parties embarrassed themselves, except most of the party leaders have no shame and are thus immune from embarrassment. General feeling is that apparent total lack of organization is not an accident, but reflects efforts to rig/manipulate the outcomes.
*There were obvious deals between the incumbents and local party operatives.
*The process was well-run and by the book only in where parties had no hope of winning in that area anyway. Where there were real stakes, manipulation was rampant and obvious.
*Ballots were delayed for many hours in many locations; some politicians felt this was intentional and especially disenfranchised women voters, who either couldn’t wait all day or had to go home before dark for safety reasons.
*Hate literature observed to date is overwhelmingly generated by PNU supporters.

Positives Observed:
*Turnout was surprisingly good. People were very determined to vote. Many waited from 6 a.m. to 3 p.m. or later for ballots to arrive. In some cases where ballots were delayed, people agreed amongst themselves to vote on whatever pieces of paper and honored the results.
*Dozens of outgoing MPs (including some we are very happy to see go, i.e. [REDACTED] were eliminated at this stage, which suggests that you can’t always manipulate the results.
*Our sample was biased as we purposely went to areas where trouble was expected and/or stakes were high, so we likely observed a disproportionate amount of rigging, etc.
*With the recent passage of the Political Parties Bill, this is the last time that the party nomination process will be run by the parties themselves. In the future, the Electoral Commission of Kenya (ECK) will run it (at least, for all parties who want public money). PNU contracted with the ECK to run their primary this time, but it didn’t happen in practice–party leaders took over and wouldn’t let ECK do its job.

After the Primaries:
*We expect a lot of horse trading. Some winners were DQed on appeal and even without an appeal. There were also many “directed nominations,” which led to the resuscitation and handpicking of many old dinosaurs/unpopular incumbents notwithstanding voter opposition.
*There may be blowback with an impact on turnout for Dec. 27. There were widespread feelings of bitterness and disappointment, especially among ODM supporters, who expected to participate in a “new beginning.” Many people complained that, populist image notwithstanding, ODM is run like a dictatorship and that the way of doing things is no different than KANU used to do in the past. The positive difference is that the electorate is much more vocal and active in demanding transparency and participation in the electoral process. The howls of protest regarding some of the directed nominations show the electorate’s increasing maturity and lack of interest in this kind of politics.
*Many unsuccessful candidates have jumped to smaller/marginal parties. There is a cottage industry of sorts selling nominations.

Possible Impact on Main Parties:
*The disappointment and frustration with the nominating process was greatest among ODM supporters. Will this experience sap the energy of ODM supporters, or can ODM redeem itself? Will people continue to be willing to take a chance on an unknown quantity?
*Fear/stability is a powerful motivating factor in Kibaki’s reelection prospects. The contest between ODM and PNU can be characterized as “hope vs. fear.”
*PNU has much less internal discipline and message consistency. Virtually all PNU parties are fielding their own candidates for Parliamentary seats, so not much of a real coalition.

Political Violence
*Two possible types. One, aspirant (often incumbent) MPs use paid gangsters (and sometimes local police officials) to intimidate or disrupt the polling process (trash polling stations, threaten voters waiting in line and/or election officials). Two, spontaneous voter uprisings, where voters feel they are being disenfranchised and attach the presiding officers. If the ECK runs an efficient process as expected, this should lessen the possibility of voter violence. —–END—–

For context, this November 20, 2007 summary of what was observed during the primary elections was roughly a month after the Ambassador’s intervention in the public opinion polling as described in previous documents and a month before the Ambassador’s public statement predicting a “free and fair” election the week before the general election. Nairobi is the State Department’s biggest Sub-Saharan post; it was staffed with smart and observant people and obviously well funded–the problem was not what the State Department did not know, rather it was what it would not say.

Meeting

Lessons for Kenya’s 2012 elections from the truth trickling out bout 2007–new FOIA cables (Part One)

Election Observation–Diplomacy or Assistance?

And a key scholarly book to study on the 2007 Kenyan elections . . .

Karuti Kanyinga and Duncan Okello, eds. Tensions and Reversals in Democratic Transitions:  The Kenya 2007 General Elections.

Nairobi:  Society for International Development, in conjunction with the Institute for Development Studies, University of Nairobi, 2010.  709 pp. Notes.  Paper.

Reviewed by Frank Holmquist of Hampshire College in the African Studies Review, Volume 54, No. 2:

This is a big book of more than seven hundred pages with eighteen lengthy, theoretically engaged, and well-referenced essays.  There are editorial mistakes, but they are not significant diversions.  The authors, who represent a variety of disciplines, are almost all Kenyan scholars.  The essays speak more to the nature of Kenyan politics that led up to the election with the near collapse of the state, and less to the violence itself.  As a result, they are an important contribution to understanding the election crises and its aftermath, and to the broad study of Kenyan politics and democratization.

I would also note that Holmquist identifies the piece by Karuti Kanyinga, James Long and David Ndii as “the best assessment to date” of how the voting actually went in the presidential election.

I will be at the African Studies Association annual meeting in Washington next week and didn’t want to neglect to include my friends from the academy in reminding readers of what is available now to better understand what might play out over the next year in Kenyan politics.

The book was “launched” in Nairobi just before the constitutional referendum, but the message was considered inconvenient by some of my esteemed friends in the media and it did not get as much coverage as it might have otherwise.  This is from The Standard on July 26, 2010:

Interim Independent Electoral Commission (IIEC) Chairman Isaack Hassan has assured Kenyans of a free and fair vote at the referendum.

This comes at a time when some ‘No’ leaders have accused ‘Yes’ of plotting to rig the August 4 plebiscite.

The IIEC boss said he was keen to prove to Kenyans and the world the country has moved on after the bungled 2007 General Election.

“Before the violence, Kenya was seen as a beacon of democracy in Africa. That is why we want to repair that shameful part of our history by having a clean and fair referendum,” he said.

Added Hassan: “Many of our leaders don’t seem to have learnt from the post-election violence. For them, campaigns are just a matter of hurling insults and making loose claims. This must change to save this country.

Dark chapter

He spoke during the launch of a book, Tensions and Reversals in Democratic Transitions: The Kenya 2007 General Elections at Serena Hotel, yesterday.

Swedish Ambassador to Kenya Ann Dismorr urged the IIEC to conduct an unimpeachable referendum.

University of Nairobi lecturer Karuti Kanyinga, a co-editor of the book, said election malpractices should be punishable by death since they are the main cause of election violence.

Kenyan reactions to the ICC cases

Maina Kiai has the best articulation I have seen of the problems with the response to the naming of the ICC suspects at his blog this week under the title “After the Ocampo List: Let’s Get the Facts Straight”:

The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue… More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality . . .

For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent – for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action – from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality. . . .

It is not too late, nor too expensive, for some bit of justice here, it seems to me.  While it is a crime in itself that no one is being prosecuted directly for the election crimes, it seems to me that the prosecution of the police commissioner is at least a prosecution of the direct state actor in charge of enforcing the election theft by suppressing the inevitable protests.  Beyond that the ethnic-related militia killings addressed in the other Ocampo charges are exactly the kind of crimes against humanity that surely do  not have to be tolerated in the twenty-first century in a country like Kenya, irrespective of election competition.  Far from doing anything for the cause of electoral justice, Kalenjin militias being turned against Kikuyus in the Rift Valley helped solidify Kibaki’s hold on power after he was sworn in such openly questionable circumstances.

Museveni and Kenyan Politics, with America watching

The interplay of Ugandan and Kenyan politics continues, as covered in a fascinating story in the Standard, “Why Museveni is warming up to Kenyan politicians”. Well worth reading the whole thing.

Aside from the oil and ethnicity issues mentioned in the story, it is worth keeping in mind the value to Kenya–and to the United States–of Uganda’s troops serving in the AMISOM mission in Somalia. See the Jendayi Frazer interview with CFR.org from January 2008 on the impact of the post-election violence in Kenya in delaying a planned deployment to Somalia.

On the “Diplomacy or Assistance?” topic we will once again have dual U.S.-funded election observations for the Ugandan election in February, both the U.S. Embassy and IRI, like in Kenya. I have been waiting for well more than a year now for a response to my Freedom of Information Act request for the documentation behind the public statements made by the Embassy in Kenya about their observation of the Kenyan election. It will be interesting to see how transparent things are in Uganda this time.

See my April post “Odinga and Museveni, ICC”; and from January, “Secretary Clinton Keynote at National Prayer Breakfast and Museveni”, and “Somalia/Somaliland, Moi, Uganda . . . “