Read the whole thing — that is what we American taxpayers have paid for. In summary: “Regrettably, the elections represent a major setback in Kenya’s democratic development.”
(h/t Daniel Finan of RFI English)
Update: (As of this morning, 8 March) I was not able to find the Final Report or related material on the Carter Center website.)
Most recently the Center had summarized: “The Carter Center said that the fresh presidential election was not fully competitive and marked by insecurity and political uncertainty. It called for national dialogue and reconciliation process to heal political and tribal rifts that were made worse by the 2017 elections.”
The succession concern may likely have resonance in Washington given U.S. interests, although my sense is that the economic boycotts are the most salient message in Nairobi. During the PEV period following the corrupted 2007 election, ODM backed off on threats of such economic boycotts which seemed risky as unprecedented and perhaps perceived to be “over the top”.
This is the underlying reality that I have routinely pointed out privately as well as mentioned here. No president in Kenya has ever lost a re-election. Uhuru Kenyatta had a decision to make as to whether he was willing take a risk of losing at the polls or not. (In 2007 it was clear, as seen with hindsight, that Mwai Kibaki was not willing to take that risk. He controlled the ECK accordingly.)
Peace Wall Kibera Nairobi Kenya 2008
Under the new Constitution adopted by virtue of the 2008 Post Election Violence settlement and with effectuation of some reform, the new Supreme Court to almost everyone’s surprise held its independence and applied the law to find that the IEBC did not meet the minimum requirements of the law in declaring the President re-elected without full and reliable results under required procedures. Even in this context the Court was careful not to blame the President or the Executive branch for the use of state resources and the underlying irregularities and illegalities that were seemingly born as orphans within the IEBC.
Since the Supreme Court’s ruling the Court and the Judiciary have been under attack from the Executive just as the IEBC has been under attack by the opposition. On balance, the international diplomatic community re-iterated its ongoing multi-year endorsement of the IEBC, consistent with the “Preliminary Statements” of the major international election observation missions in 2013 and on August 10, 2017. On balance, the international diplomatic community has said little about protecting and preserving the hard won independence of the Judiciary.
Today, the Supreme Court fell. The Interior Minister signaled an intent to order that today be a public holiday (“election day eve”?) and the driver of the Deputy Chief Justice was shot while running an errand in the Justice’s car. When the Court convened to hear and decide the urgent matter of whether the presidential election nullified from August 8 could be conducted by the IEBC tomorrow in light of the Court’s previous ruling, only the Chief Justice and one associate showed up.
With a majority of the Supreme Court “missing in action” the Chief Justice determined that no quorum existed, the hearing could not be held so that so that there is no authority to determine the law separate from the President who has declared throughout that his one “irreducible minimum” requirement is that the presidential vote be held on October 26.
Then the High Court ruled on a separate challenge—reminiscent of Judge Leonola’s ruling in 2013 on AfriCOG’s petition to enjoin the vote tally by the IEBC after the “failure” of the results transmission system—that jurisdiction to challenge actions involving the presidential election rests only at the quorumless Supreme Court.
It is clear to all that the IEBC is not ready, and belated calls have been coming to postpone the vote but the bet on the IEBC was already placed and when the diplomatic community chose to leave it down in the face of the dramatic defection of Roselyne Akombe, whose name is now usually “one commissioner”, the game may be over on that front.
I do not assume that writ large this outcome in Kenya constitutes the fruition of or is consistently underwritten by some coherent foreign policy agenda of the United States and/or the UK or other Western countries that have supported the ECK/IIEC/IEBC over the past 15 years. This is the third U.S. administration to be involved in this scenario and going back even through the entirety of Kenya’s history the persistent thread is that we support the President (whether we like or respect him).
Uhuru Kenyatta has specific relationships of various sorts among certain American elites, but that is a very different—and perhaps contradictory—thing from the idea that Kenyatta’s behavior supports specific foreign policy objectives of the United States. The great strength of the United States as a relatively open, chaotic society with turnover and diffusion of power is that much of what is often seen as “policy” from more repressive vantage points is more like “stuff that happens” seen from within our system.
[Nonetheless, I will have more detailed and informed opinions about the August elections when I finally get from USAID documents I requested in 2015 about our support for the IEBC in 2013.]
Events of the last few days are more twists, turns and wrenching associated with Kenya’s status as being stuck or frozen by the stolen election of 2007 and its aftermath, pending forward movement to truly realize a new system under the new constitution approved overwhelmingly in 2010, or back into a now-digitized/globalized version of a single party power structure based on elite-level tribal bargains.
Based on the 2013 election and Kenyan history, in the immediate run the continued retrenchment of democracy is surely likely, but we can hope otherwise. And most importantly, Kenyans can keep their eyes on the horizon and recognize that much of the work of getting Kenya (back?) to the state of democratic openness that was preceived to have existed in the early times after the defeat of KANU at the polls in 2002 will remain regardless of who is president.
And the vital task of acheiving a transparent and trustwothy, bona fide independent electoral commission must not stop with the immediate “fresh election” regardless of when it is or whatever limited progress is obtained through current NASA demands for “irreducible minimums”.
ODM and Wiper and other parties made a mistake by waiting until early 2016 to focus on forcing reforms of the Issaak Hassan “Chickengate” IEBC of the badly administered 2013 election. Even though agreement was obtained to replace the Commission with loss of life of protestors killed by police by mid-2016, the old Hassan Commission stayed in control until early this year, after budgets and plans (and some contracts apparently) were in place, assistance programs by the United States and others contracted–and apparently adjusted by demand of the incumbent ruling party.
The new Commission inherited Hassan’s staff and remains quite murky as to the extent that they are de facto independent enough to effectively manage and discipline that staff. The selection process was messy and murky and the Vice Chair of the Commission turns out not to have resigned her job with the UNDP but rather taken “leave” of undisclosed terms while serving. Are other Commissioners of uncertain independence from other players in administration of the elections? (I am not concluding that Dr. Akombe is not independent of the UNDP–just that there are unavoidable questions which neither the UNDP nor Dr. Akombe seem willing to address–nor Kenya’s media to take up.)
No incumbent president in Kenyan history has been found by Kenya’s election management body to have lost an election–certainly the opposition has always known it had an uphill battle to have real hope of winning, aside from the fact that the incumbents have strong support in their bases and were ahead by a few points in most polls as of late July. In this environment, the failure to achieve deeper reform of the old IEBC by early 2017 was probably fatal to a real chance to win all other things being equal.
The surprising and gutsy decision of the Supreme Court of Kenya to rule that the IEBC’s conduct was just too far beyond the pale to pass legal muster gave everyone another chance, but of course it did not change any hearts and minds of people who were never willing to risk of losing office at the polls in a free and fair vote.
The United States and other donors attracted a lot of published advice from its own employees and through indirectly supported sources like the International Crisis Group stressing the importance of transparency for trust building but elected instead to continue to stay the course of underwriting the ECK-IIEC-IEBC and publicly promoting its output to Kenyans without re-consideration of the risks and costs of non-transparency and undisclosed failures with the electoral management process, such as the alleged bribery in 2007 that warranted undisclosed US “visa bans” and the subsequent “Chickengate” bribes and the bogus procurements of technology that left Kenyans exposed again in 2013.
This is not rocket science. Kenyans who are increasingly divided by tribalism as their politicians offer and deliver less democracy and less other models of leadership, are more likely to accept and trust what they are openly shown and explained.
I will be prepared to more substantively address the 2017 vote/s once I get the documents I am due and expecting from my 2015 FOIA request about the 2013 election. Until then, we can still decide to do what we know can be most helpful to build trust if we want to.
Today the Carter Center Election Observation Mission released an additional report discussing briefly the findings and proceedings of the Supreme Court of Kenya in deciding the presidential election petition but primarily focused on the negotiations and preparations for the “fresh election” scheduled by the IEBC for 26 October.
There has been some public controversy and debate, as well as confusion, about the role of the UNDP in the funding and management of this years Kenyan election to a degree that was not apparent in the last two cycles. The UN is a big presence in the Nairobi and Kenyan economic and political scene, so it hardly surprising that their role in the overall outside democracy assistance program would come into scrutiny where things went badly and the election was annulled. Most recently there was an offer made by the IEBC to have the UNDP undertake ballot paper procurements, for instance, which was declined by the candidates. (I am not ready to wade into the thickets of the controversy about the fact that the most public face of the Commission itself other than the Chairman has retained her employment with UNDP in a leave status while accepting appointment from the President and taking office as an IEBC Commissioner in January and related matters,)
From an EU report at the beginning of the year:
The UNDP-led “Strengthening the Electoral Processes in Kenya Project” aims to strengthen Kenya’s electoral institutions, systems and processes in Kenya in view of the 2017 elections.
Following the EU’s support to Kenya during the 2013 elections, the EU is capitalising on the lessons learnt from that period to provide a better electoral support mechanism for future elections. The EU’s financial contribution to “Strengthening the Electoral Processes in Kenya” aims to develop stronger legal and institutional structures that will lead to transparent, credible and peaceful elections, as well as leading to more informed participation in the electoral process. In particular, we expect:
a strengthened institutional and legal framework for the electoral processes;
a strengthened participation of voters, parties and candidates in the electoral process with emphasis on women, youth and disabled
the delivery of more efficient, transparent and peaceful elections
a strengthened electoral justice and increased compliance with the electoral framework
The programme supports activities that cover the whole country. Beneficiaries of it include the Independent Electoral and Boundaries Commission (IEBC), which will be the largest recipient of the programme’s assistance. Other beneficiaries include Kenyan institutions and organisations involved in the drafting of legislation, dispute resolution between political parties, media regulation, women’s empowerment and security, including:
the Office of the Registrar of Political Parties
the Kenya Law Reform Commission
the Judiciary and Political Parties Disputes Tribunal
the Director of Public Prosecutions
the Police Service
the National Cohesion and Integration Commission
other government agencies including county governments
civil society (including women movements) and media
The EU is contributing EUR 5 million to a projected total basket fund amount of EUR 21,5 million (US$24 million). The other donors to the “Strengthening the Electoral Processes in Kenya” project are currently DFID and USAID; some other donors might also join. To date (as of January 2017) US$14.65 million has been raised. The basket fund became operational in the second half of 2015, and activities will last till the end of 2018. The implementing partner is UNDP, with support from UNWOMEN.
The Supreme Court of Kenya’s long awaited reading of its full opinion on the presidential election petition this morning squarely hammered the discrepancies between the process requirements of the law and what the evidence showed happened.
The Court found explicitly, for example, that the affidavit submitted by the IEBC asserting that all of the tally papers had security features was contradicted by the documentary evidence eventually produced by the IEBC under order of the Court in the hearing.
The Judiciary website seems to have been down from before the announcement so I will have to wait to read the opinion.
The Court made clear that there would be no basis for it to uphold a similarly compromised process in a fresh election.
The ball is squarely in the “court” of the IEBC and its advocates and funders to grapple with the “contamination” and its causes to find a solution.
(On the submission of the Preliminary Statements of Election Observation Missions as evidence to bolster the defense of the IEBC, the Court said they could not be considered as they did not go beyond looking at the voting and counting at a sample of polling stations. This is good news in correcting one of the flaws from the original 2013 presidential petition litigation.)
“I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.
The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.
But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.
Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.
Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.
Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.
Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)
Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.) Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month). No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting. No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.
No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.
Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.
Maina Kiai in his Saturday Nation column submitted before the Supreme Court announced its ruling annulling the election had this to say:
And it has been disappointing to see international observers — some domiciled in Kenya and some from outside — play that same game. Is this because they don’t think we deserve better?
Or is this guilt about the waste of millions of dollars spent on the IEBC? Or is it because the election result of August 10 is exactly what these observers wanted?
If it is the latter, why on earth do we ever have elections in the first place? International observers — aside from the EU Observation Mission (not the EU in Kenya) — set a new low for what it means to do elections observations.
Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):
Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.
It is simply not the same thing at all in my opinion.
Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.
Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)
I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.
People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.