Tag Archives: Carter Center

Kenya Election – France24 Debate with EU Chief Obsever and Nanjala Nyabola (and more)

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A worthwhile 45 minute discussion on the status of the Kenyan election in the wake of the Supreme Court ruling including particularly the role of the election observers:

France 24 Debate – “Kenya Back to the Polls: Landmark Ruling, Renewed Uncertainty”

Guests:
Marietje SCHAAKE
Dutch MEP, Alliance of Liberals and Democrats

Patrick SMITH
Editor in Chief, The Africa Report

Nanjala NYABOLA
Writer and political analyst

Roland MARCHAL
Senior fellow at CNRS, Horn of Africa Specialist

And here from Quartz Africa: “Kenya Elections 2017 – Role of International Election Observers under scrutiny after Kenya’s presidential election annulment.”

Maina Kiai in his Saturday Nation column submitted before the Supreme Court announced its ruling annulling the election had this to say:

INTERNATIONAL OBSERVERS

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.

Kenya’s presidential election petition – it was clear IEBC did not follow the law, even before Supreme Court Registrar showed serious skulldugery with ICT

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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.

Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”

Best overall international piece so far on Kenya Supreme Court decision

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Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”

One of the most important lessons from today is how cowed Kenya’s media really is by the Government.  This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres.  But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.

Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.

For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.

Kenya Election: How IEBC CEO explained what was legally required for electronic Results Transmission and how KIEMS was to meet requirement

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“IEBC’s high-tech system to guard against ballot stuffing” The Standard July 22, 2017

The Independent Electoral and Boundaries Commission (IEBC) has assured that the integrity of the August 8 election has been guaranteed through tamper-proof technology.

The Kenya Integrated Elections Management Systems (KIEMS) has unique features that will make double voting, ballot stuffing, and irreconcilable voting patterns impossible. IEBC is already preparing to deploy 45,000 KIEMS kits to be used in all the 40,883 polling stations across the country.

Every polling station has been allocated a Kit with a maximum number of 700 voters depending on the size of the polling centre. By implication, voters in a polling station cannot exceed the allocated number.

The KIEMS technology has two main functions in this election. The first is biometric identification of voters on the election day and results transmission after counting the votes.

The Commission has made it mandatory for all voters to be identified biometrically to close the doors for possibility of resurrection of dead voters.

IEBC Chief executive officer Ezra Chiloba said the Commission has invested heavily in technology and can guarantee successful transmission of election results.

“We have no choice really. The law already demands of us to electronically transmit presidential results from the polling station to the tallying centres,” he said.

After counting of results, the presiding officers in the presence of party agents are expected to type the total number of votes garnered by each candidate into the kit.

The kit aggregates the results automatically and the total number of votes cast for all the candidates is recorded. In cases where the number of voters exceeds the total number of registered voters, the kits shall automatically reject the results. This measure, according to the Commission, effectively makes ballot stuffing impossible.

As an additional measure to guarantee the integrity of elections results, the presiding officer shall scan Form 34A using the KIEMS kit. The Form 34A is signed by both the presiding officer and party agents. Once scanned, the presiding officer shall, together with the text results, send the same to the national tallying centre and constituency tallying centres.

The kit shall equally report turnout trends periodically throughout the day. With this kind of monitoring, the Commission says, ability to identify abnormal voting patterns is guaranteed.

At the end of the voting, said Mr Chiloba, the presiding officers in the presence of party agents are required to reconcile the number of voters recorded by KIEMS as having voted and the number of ballot papers issued.

“We have two procedures that minimise the risk of ballot stuffing. One, the voter turnout as recorded by KIEMS. Two, the ballot papers reconciliation that happens at the end of voting. The number of ballots papers issued and the records of voter turnout as registered by KIEMS should be able to reconcile,” he said.

The Commission contends that once the presiding officer has pressed the “Submit” button, the results cannot be changed by anyone.

Using an encrypted format, the results shall then be transmitted to the tallying centres through a secure network in real-time. The public will be able to view the results online. Similarly, Media will have a dedicated connection to access real-time results as well.

According to ICT sources within the commission, the KIEMS have a unique in-built audit trail. The in-build audit trail enables the commission to collect all the kits and to retrieve records from the SD cards for any analysis at the end of voting. This in-built accountability tools implies that the process of voting can be subjected to objective scrutiny at any point in time after voting.
.  .  .  .

Clearly, much of what Chiloba and the IEBC described here just over two weeks before the election did not actually happen after the votes were cast and counted on election day.

Why?  Well, much of the explanation likely rests on the new information disclosed in the Registrar’s reports on the Forms 34A and Forms 34B and the IEBC ICT review in the Supreme Court litigation.  Other things were going on within the process than described.

Kenya’s Presidential Election in a nutshell:  1) widespread failure or non-use of purchased electonic Results Transmission System (as in 2007 and 2013); 2) lack of transparent or complete “complementary” substitute (as in 2007 and 2013)

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The voting and counting, as I have previously noted, is the same this year as in the past.  The voter register remained messy again with likely more than one million dead voters and plenty of ineligibles, and was not fixed and locked down as required.  From outside appearances so far, however, the EVID system seems to have substantially worked this time which may have been a big improvement from 2007 and 2013 in limiting in person voting by ineligibles.

The RTS system which was to transmit from a unique registered and logged-in KIEMS device for each of the polling stations a scanned image of the finalized executed Form 34A simultaneously to the various tally centres, either was substantially misused or failed to work as advertised and/or some combination of the two.  The Jubilee majority in Parliament early this year, coincident with the turnover from the Hassan-chaired IEBC to the Chebukati-chaired IEBC passed over opposition objection the option of allowing a complementary substitute for the electronic system.  As far as I can tell the IEBC did not actually plan and establish such an alternative system, nor certainly did they effectuate it in any comprehensive, demonstrable, traceable way.

Nevertheless, rather than take the seven days alloted by law, Chebukati announced alleged final Presidential results roughly 72 hours after poll closing.

Is this “close enough for horseshoes and Kenyans” or is more required to successfully conduct and conclude a presidential election in Kenya in 2017?

Update: my email to a friend regarding the Court-ordered review of IEBC presidential election data:

I haven’t finished reviewing the Registrars report in detail, but it seems clear to me that the IEBC declined to provide, as directly ordered by the Court, the evidence that would verify or falsify alleged transmittal of scanned Forms 34A by KIEMS sets from Polling Stations to Tally Centres (Constituency, Cty, Nat’l).

Whatever the Court decides to do about the on the ruling petition as a whole, allowing the IEBC to flex its muscle over the Supreme Court openly in this way would probably pretty well tell us where things are headed on rule of law issues over the foreseeable future and whether there will be a serious challenge to Ruto in 2022-32.

See “Audit Report on IEBC Servers: login trails, Forms 34A and B not provided” in The Star.

What Carter Center actually said in Preliminary Statement: “Given that the tallying process is ongoing, the Center is currently unable to provide an overall assessment.”

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From the Carter Center Preliminary Statement (August 10):  Carter Center Prelim Stmt of Vote Tally and Transmission of Results

For a Kenyan view, see “IEBC results: We’ve more questions than answers” writes Muthoni Wanyeki in The East African on August 22.

“Preliminary Findings” released by Kenyan civil society coalition on election

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Update 23 Aug – Here is the latest from the  Kura Yangu Sauti Yangu monitoring:    KYSYElectionDataUpdate-WhyDisputed-22Aug2017

Following the unlawful raid on AfriCOG in Nairobi yesterday, today the Kura Yangu Sauti Yangu election monitoring program which has been engaged since long before any of the International Election Observation Missions were constituted, released its Preliminary Findings.

Please read for yourself (especially if you have commented publicly so far on Kenya’s election).

It would be easier for Mr. Chebukati and Mr. Kerry to make their case to Mr. Odinga’s supporters with much greater transparency

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There is a lot that Kenyan voters could be told that they have not been told about how their votes were represented to them by the IEBC over the last several days since they voted and all the ballots were counted Tuesday evening.  As assurances given to the voters in 2007 and again in 2013 in the immediate aftermath of voting those years did not in some substantial respects turn out to be factually sustainable, it is no suprise many Kenyans would want to verify rather than just trust now.

One would expect everyone involved this year to anticipate questions.  There were lots of prominently published warnings of the need for transparency (from the International Crisis Group among others).

Mr. Kerry was Secretary of State in 2013 and presumably has current clearances that would allow him as an individual, now post-government service, to make doublely sure he is fully briefed about the failed Results Transmission System of 2013, as well as other past problems, if he wasn’t before coming to Nairobi last weekend for the Carter Center.  Presumably he could also ask the current US and Kenyan governments to go through the details relating to procurement and use of KIEMS this year.  Then he could answer questions and demonstrate the kind of transparency that would build trust.

Alternatively Mr. Chebukati and the current U.S. government could answer questions irrespective of the Carter Center or other independent Election Obsevation Missions.

Kenya vote: target turns from “will of the people” to “free and fair, peaceful and credible” to “fair, orderly, credible and nonviolent”

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Old KANU Office

Solo 7–Kibera

In the 2013 Kenyan election John Kerry was the American Secretary of State, speaking to Kenya’s elections that year in his role as lead American diplomat.  The U.S. provided key funding as well as embedded technical support for the IEBC in that election, including funding for the failed procurement of an electronic results transmission system.

It was suggested that the election, in spite of a certain disarray and incomplete results, reflected “the will” of Kenyan voters–and was subsequently upheld by Kenya’s Supreme Court (with preliminary observer statements from the Carter Center and EU as evidence offered by the IEBC in litigating against the challenges).

Likewise as Secretary of State Kerry addressed Kenya’s 2017 elections during his official visits in 2015 and 2016.  The second quote above, “free and fair, peaceful and credible”, comes from Secretary Kerry in Kenya last year.  The new terminology for the 2017 vote, “fair, orderly, credible and nonviolent”, comes now from former Secretary Kerry, wearing a new hat as co-leader of the independent International Election Observation Mission being conducted by the U.S. based NGO, The Carter Center. (See Daily Nation 14 July “Ex-Secretary of State insists on fair election“)

Over the years I have written and noted the potential distinctions involved in the decision of international observers to suggest that a particular election “reflected” or corresponded to a standard labeled “the will of the people” on one hand, and on the other to label an election “free and fair.”

An overview and “gateway” is my post “An insider’s explanation of the difference between a ‘free and fair’ election and a ‘will of the people’ election — Kriegler deputy’s memoir“.   The issue is discussed in relation to the internationally supported South African election of 1994 discussed in the recent memoir referred, and on into 2007 and 2013 in Kenya, with Kreigler and IFES re-engaged in a different context.

See especially my post “Are free and fair elections passe in Kenya?“.

The most important point for Kenyans is that the 2010 Constitution adopts explicitly as law a “free and fair” standard.  Peace, order and nonviolence are good and important societal goals.  Many of us are skeptical that tolerating corruption or other substandard conduct in administration of elections is somehow a useful tool to serve peace, order or nonviolence (just as war, disorder and violence do not clean up the election process).

Mocking democracy: Government of Kenya announces “Kenyan Asian community backs President Kenyatta’s re-election”

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Democracy Assistance

“URAIA Because Kenyans Have Rights”  — Democracy Assistance facade?


[Update: The Daily Nation, “State Officials on the campaign trail“:  “The Jubilee administration has deployed civil servants and key government officials on vote hunting missions across the country in contravention of the law.”]

Let it not be said that there is any serious pretense that the Government of Kenya is neutral in the contest for political allegiance of potential “swing” ethnic groupings, rich in votes or money, in the current election, a contest for power between the Uhuruto ticket representing the current generation of the original KANU establishment led by the Kenyatta family and an opposition coalition led by Raila Odinga and Kalonzo Musyoka.

Here is the “latest news” from the Government of Kenya, Office of the President (www.president.go.ke): “Kenyan Asian community backs President Kenyatta’s re-election”.

This years’ “Jubilee Party” was literally formed at State House as the Uhuruto re-election vehicle, formally merging Uhuru Kenyatta’s TNA and Ruto’s URP, just as this meeting of State Officials and “Asian” Kenyan businesspeople and politicians for the re-election campaign was convened at State House.

Conduct of this sort, aside from being a clear form of corruption per se as a misappropriation of public resources for private gain, is explicitly against the mandatory Code of Conduct for the Kenyan political parties.  (On paper the campaign, in full swing for months, is not even to start until May 28.)

Will the Registrar of Political Parties and the Independent Electoral and Boundaries Commission take action?  The IFES led consortium of US based organizations both facilitating and underwriting the cost of the election, while also coordinating its “observation” at the expense of American (and in parts Canadian) taxpayers?  What about ELOG, the donor supported Kenyan observation group?

IFES has already beeen attacked by the Kenyan Government and ELOG is charged with continuing to do business in Nairobi on a permanent basis, so it would be a huge act of institutional courage for it to seriously challenge the conduct of the Office of the Presidency.  We have been in the mode of continuous institutionalized democracy promotion in Kenya for 15 years (!) now.  No matter how many  capacity building seminars we hold for the little people in the cities or the politicians in the resorts in the Rift Valley or at the beaches, if we let ourselves simply be mocked and pretend that this is working we will surely risk moral injury to our own democracy.

Read the whole campaign piece here:

The Asian community in Kenya has endorsed the re-election of President Uhuru Kenyatta.

Leaders of the community said they have taken the decision to rally behind the President because of his commitment to creating an enabling environment of business and development.

The leaders, who visited President Kenyatta at State House, Nairobi, said policies implemented by the Jubilee Government have enabled more business to thrive and made Kenya a preferred destination for investors.

At the meeting which was also attended by Deputy President William Ruto, representatives of the community assured the President that they would rally behind him to ensure the country’s development tempo is sustained.

“What we have seen in the last four years needs no magnification and my words can be supported by facts that can be seen and quantified, “said businessman Iqbal Rashid.

The businessman cited the upgrading of the old railway system with the Standard Gauge Railway, the upgrading of the Jomo Kenyatta International Airport and continuous improvement of the infrastructure connecting cities and towns.

He said the continued flow of investments into Kenya from all corners of the globe was as a result of the confidence in the leadership of President Kenyatta.

Women leaders Parveen Adam, Shamsha Fadhil and Farah Mannzoor thanked the President for championing an agenda that fosters inclusiveness as well as the prosperity and unity of all Kenyans.

They said women appreciate his efforts to spearhead the campaign to have the two third gender rule passed by the National Assembly.

Businessman Bismiahirahman Nirrahim said the Asian community has witnessed the transformative leadership of President Kenyatta which has helped in creating conducive environment for investments.

He cited the increased ease of doing business resulting from President Kenyatta’s policies including the policy to reduce the time it takes to register a new business.

Nirrahim said the youth and women empowerment program implemented by President Kenyatta’s Administration has also been a transformational policy that deserves praise.

President Kenyatta thanked the leaders for their support and assured them that he would continue working tirelessly to make Kenya a more prosperous country with shared prosperity.

He said the Asian community has been keen in developing Kenya saying the community has always been in the forefront championing the interests of the nation since the days of independence struggle.

“Like all of us you were part and parcel of the Kenyan struggle for Independence, the role you played cannot be ignored,” said President Kenyatta.

The President said he is a believer in an inclusive society adding that he would want to see the Asian community participate more in both social and economic development of the country.

“This is the government that believes in encouraging partnership and working together. Your success is our success,” said President Kenyatta.

Also present were the Chief of Staff and Head of Public Service Joseph Kinyua among other senior government officials.

Author

Gok

Update May 26:  See “Asian Kenyans seek to be declared a ‘tribe’ of their own” in today’s New York Times.