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.
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.”
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).
“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.
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.
Update May 26: See “Asian Kenyans seek to be declared a ‘tribe’ of their own” in today’s New York Times.
Good. Unfortunately, as was that much more conspicuous with the hearing about the 2013 Kenyan election, the subcommittee has scheduled testimony from the IFES/NDI/IRI troika, but without the Carter Center scheduled. The Carter Center conducted the USAID-funded Election Observation Mission itself for Kenya in 2013, so the omission was hard to understand on a hearing on that very election; it is still hard to understand for an Africa-wide hearing. (I have no idea why things have turned out this way, I am simply making the point that Congress would have an opportunity to be better informed if this wasn’t just an “all in the Beltway” experience.)
Here is the contract language requiring a Final Report from the Cooperative Agreement for the USAID – IRI Kenya polling program starting with the 2005 Referendum Exit Poll and culminating with the 2007 General Election Exit Poll:
I finally learned last month from my March 2013 Freedom of Information Act request to USAID that the required Final Report was never filed. Eventually getting to the truth of this involved a significant amount of “beating around the bush” and a previous 2009 FOIA request from the University of California, San Diego that should have disclosed all of the reporting–but to which USAID replied only after two years and then by producing only a copy of this Agreement itself without any of the rest of the contractual documents.
So ultimately there is no explanation in the reporting as to how the 2007 exit poll went from successful in a January 14, 2008 quarterly report from IRI to USAID, to “invalid” in IRI’s February 7, 2008 global press release, and then back to successful months later with public release of the results contradicting the Electoral Commission of Kenya. Nor the impact of this discrepancy on the overall effectiveness of this 2+ year $570,000 democracy assistance polling program or the overall multimillion dollar U.S. support effort for the 2007 Kenya election.
Lessons from an accurate accounting of what really happened with U.S. assistance for the disastrously failed 2007 election should have been reckoned with in preparing for 2012-13. Unfortunately, in 2013 we had initial reporting of the USAID funded parallel vote tabulation with very limited transparency and seemingly ad hoc communications, and an initial USAID funded Election Observation report offering positive assurance for the reliability of the IEBC’s announced result, only to be quietly contradicted months later by the final Carter Center report.
The biggest problem in 2013 was the catastrophic failure of the Electronic Results Transmission system–the system that was established in Kenya’s election law to provide for the conveyance of the results from the polling station–the only place where the paper ballots are actually counted–to the IEBC. Sadly, this was directly prefigured by what happened with the similar, if less ambitious, Electronic Results Transmission system–also funded by USAID through IFES and the UNDP–in 2007. In 2007 the Electoral Commission of Kenya simply voted in December to shelve the computers and not use them, thus creating the opportunity for the Returning Officers to turn off their phones and drop out of the way.
In 2013, we had the spectacle of highly dubious procurement practices by the IEBC with a last minute attempt–or so it was presented–to roll out the technology, even though implementation was clearly not ready. The system was then shut down by the IEBC, except for the visual graphic steadily broadcast for days showing one candidate with an “early” lead [simply meaning some votes were included and most weren’t] and hundreds of thousands of spoiled ballots that did not turn out to exist.
A source confirmed for me what we all saw–that the IEBC did not have a meaningful backup plan to handle custody and conveyance of the paper forms for the polling stations where the votes had been counted when the transmission system was shut down.
Prior to the election in 2007, the U.S. Ambassador was reporting the electronic transmission system under IFES along with the IRI exit poll as American assistance efforts to support a fair election. Although my FOIA requests have not been directed at that issue specifically, the results transmission system appears to have dropped off the Ambassador’s list without explanation around the time it was shelved and so far as I remember this issue did not get scrutiny in the media at the time.
The Kreigler Commission report stressed the crucial nature of results transmission and much was made of this in drafting of the new election laws and the talk of preparations and assistance for 2013, but the ECK refused to produce the minutes of its action shelving the 2007 system (or any of its other minutes) and the Commission reported on to President Kibaki and then the Kenyan public without actual answers about what happened in 2007.
I admit to being pleasantly surprised upon wading through the details to find much more direct acknowledgment of the shortcomings of the process, especially the tallying and reporting of results, than I would have expected from the previous media reporting on the various communications about this observation mission over the months since the vote, as well as a major change in conclusions.
Read it for yourself if you are interested in Kenyan elections and the extent to which the announced presidential result in this most recent election was or wasn’t reliable, but the bottom line here is that the Carter Center has commendably stepped back from their previous assurance from April 4, a month after the election, that “in spite of serious shortcomings” the IEBC’s improvised paper-based tally process “presented enough guarantees to preserve the expression of the will of the Kenyan voters”. In the Final Report the tally/tabulation process is discussed in Pages 51-58, concluding in summary, “Overall, Kenya partiallyfulfilleditsobligations to ensure that the will of the people, as expressed through the ballot box, is accurately recorded and communicated.” (p. 57).
The report itemizes and discusses five categories of “Challenges in Tabulation”:
I. Failure of Electronic Transmission of Provisional Results
II. Inadequate Publication of Tabulation Procedures
. . . .
Therefore, the available instructions appeared to be insufficient to guarantee the integrity and accuracy of numerical tabulation. . . . (p. 54)
III. Inadequate Observer and Election Agent Access to National Tally Center
. . . .
However, the national tally center did not provide enough transparency for observers or party agents to assess the overall integrity of tally of presidential results. Unfortunately, the Center regrets the IEBC decision to confine party agents and observers to the gallery of the national tally center, making effective and meaningful observation impossible.
The Center observed many of the same kind of discrepancies in the tally procedures that had generated so much criticism and speculation in 2007; results announced at the national tally center differed from those announced at constituency level, missing tally forms, inconsistencies between presidential and parliamentary tallies, instances of more votes than registered voters, discrepancies between turnouts of the presidential and parliamentary elections, and expulsion of party agents from the tally space at the national tally center.
. . . . (p. 54, footnotes omitted)
IV. Discrepancies Between the Published Voter Register and Announced Results
The Center’s examination of reported final results for the presidential election, recorded on form 36, showed noteworthy discrepancies. . . . (p. 55)
V. Nonpublication of Detailed Election Results
One of Kenya’s core obligations concerns promoting transparency in elections and other public processes. . . . The Center remains concerned that the IEBC has not published detailed official results disaggregated at the polling station level. (p.55)
For more information on the Kenya election vote count, although not cited by the Carter Center, please see the audit performed by the Mars Group Kenya, noting the “missing” status of the Form 34s recording the tallies from each of 2,627 polling streams.
Happy American Independence Day–it has now been a full four months since Kenya’s 2013 election, yet the results have still not been released by the Independent Electoral and Boundaries Commission.
The 2012 Kenyan Constitution mandates in Article 81: “The electoral system shall comply with the following principles––
(e) free and fair elections, which are—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate
and accountable manner.
Thus “free and fair” is the legal standard in Kenya. So what standard did the international observer missions that issued their reports on Kenya’s elections without waiting for the official results apply?
One month after the election, on April 4th, the Carter Center released its postelection statement. “In spite of serious shortcomings in the Independent Electoral and Boundaries Commission’s management of technology and tabulation of final election results, the paper-based procedure for counting and tallying presented enough guarantees to preserve the expression of the will of Kenyan voters.” Kenneth Flottman, an independent elections consultant, noted that not one of the observer missions referred to the elections as “free and fair” in their preliminary or post-election reports. “Holding back on calling the election ‘free and fair’ reflects the reality of the known problems with the election,” Flottman said. “At its most crass, this is a way to say that the government in power cheated some, but the opposition probably would have lost anyway.”
He conceded that “there is a tendency to apply lower standards to achieve a ‘free and fair’ election in Africa compared to other regions [of the world]. If anything, this makes the decision not to apply the label to this election in Kenya more noteworthy.”
David Pottie, associate director of the Carter Center’s democracy programme, contested this view. “It isn’t that African elections are held to a different (higher or lower) standard than countries elsewhere in the world,” Pottie said in an e-mail. “Rather, the Carter Center bases its assessment on a) Kenya’s international obligations and b) Kenya’s constitutional and legal framework.” He added that “free and fair” is no longer the “language of choice in international public law”.
Peter Visnovitz, EU election observation mission spokesperson, agreed: “The ‘free and fair’ phrase fell out of use because defining an election as ‘free and fair’ is very black and white—it requires a yes or no answer. Whereas, in fact, electoral processes are complex and it is very difficult to come up with a concept of ‘fair’ that would please everyone.”
Ilona Tip, operations director at EISA’s South African office in Johannesburg, explained that phrases like “transparent and credible” or “the expression of the will of voters” are now preferred.
The article included some observations on the work of the Election Observation Missions from interviews in Nairobi with yours truly as an independent consultant and responses and comments from others. Here is one example:
The EU and the Commonwealth missions are also known for their independence and diplomacy, but others—particularly groups representing intergovernmental bodies—are less critical and independent, according to Mr Flottman. The AU mission had 69 observers and visited 400 polling stations throughout the country. The IGAD/ EAC/COMESA coalition deployed 55 observers to this year’s election.
Kenya is a member of the AU, IGAD, the EAC and COMESA, and they share geopolitical interests. Mr Flottman emphasised that observer missions representing the regional groupings are unlikely “to challenge any position of government”. For instance, the IGAD coalition mission declared the party nominations stage a success, Mr Flottman said. “They said the primaries were good. This is a nonsense statement. No one said that, come on.”
“Observer missions from the AU, SADC [Southern African Development Community], EAC, ECOWAS [Economic Community Of West African States]…because they are intergovernmental bodies, there is the ‘you rub my back, I’ll rub yours’ approach to certifying elections,” EISA’s Mr Owuor said, supporting Mr Flottman’s view. “In other words they were not very critical in an effort not to offend the current government.”
EUROPEAN Union election observers have said that the March 4 general elections in Kenya were “overally successful, free and fair” despite reported flaws.
They have however said the processing of the final results by the Independent Electoral and Boundaries Commission “lacked the necessary transparency as party agents and election observers were not given adequate access to the tallying centres”.
Speaking yesterday in Nairobi while releasing the final report, EU elections observation mission chief observer Alojz Peterle said there are several lessons from the difficulties that arose during the process.
. . . There are certainly sometimes questions about the conduct of outside observers.
Elections in Kenya unfortunately often provide a case in point and the latest is no exception. The EU monitors have been dragging their feet, with their final report now overdue. EU observer mission spokesman, Peter Visnovitz, reportedly promised the report would be made public by 4 May, but we are still waiting. Furthermore, in its initial press release (before the counting was complete), the EU was positive despite noting that the biometric voting process disenfranchised more than 3 million voters.
Why is the EU taking so long for its final assessment? The Kenyan Starclaims that an internal report revealed strong reservations about the processing of the results. Meanwhile, the International Crisis Group (ICG) noted numerous problems and criticised the swiftness with which international observer groups pronounced all well in Kenya’s vote.
Earlier commotion around international observers in Kenya includes their muted response to the problems in the 1992 election; the mission was eager to send positive signals to calm fears of upheavals and resume aid. Their conduct in Kenya’s 2007 election also drew criticism from the UN Independent Review Commission; the body reported that monitors had at times based their claims on misunderstandings.
Time for an African solution?
International observers are clearly not perfect. But the final part of Obasanjo’s argument – that cure for the problem is for African monitoring groups to take over from international missions – rests on equally shaky grounds.
It is true that African groups have become more active. The AU, SADC, ECOWAS, and the electoral Institute of South Africa (EISA), among others, all now feature election observer missions. The AU started as far back as 1989, and the other groups have joined in the last 10 years or so.
That, however, is where the argument stalls. By and large, these groups are not ready to take over as the sole option for election observation on the continent. They have limited resources and experience, their sponsors or member-states are often not particularly democratic themselves, and most importantly, because these organisations are even more embroiled in politics on the continent, they are often more biased than non-African observers.
Can you find on the IEBC website the election results for President, Governor and National Assembly?
The United States spent many millions of dollars on these elections, including for observation efforts through the Carter Center and ELOG through NDI. Likewise the European Union funded the EU Election Observation Mission. The United States and other donors provided many millions for the activities of the IEBC itself through IFES. And of course Kenya spent many of its own millions.
Yet, we have so much less information available from the IEBC now than we did from the disgraced and disbanded ECK in 2008.
So what is the IEBC waiting for? And where are the observers?
Is there some reason that the IEBC fears publishing the results? Could it be because the results show a huge and implausible “overvote” in the presidential race as compared to the number of votes cast in the other five elections at each polling station (and thus, ward, constituency and county)? Did ELOG, the Carter Center or the EU EOM see large numbers of Kenyans cast ballots for president and spoil or discard their ballots in the other five races?
Before noting the choice of speakers for the Uhuruto inauguration, the idea that governance in Kenya might be in the process of falling in line with its East African neighbors has been much on my mind since the IEBC’s decision on the election on March 9.
Museveni as the featured speaker–and what he had to say–certainly fits this theme. Museveni can readily castigate the ICC and “the West” for meddlesome advocacy of international standards, knowing that he has a mutual “security” relationship at a deeper level with the United States. He gets criticized by the U.S. for changing the constitution to stay in power, and for taking and keeping control of the Ugandan electoral commission–but without discernible “consequences”.
Uhuru himself in his speech said nothing about corruption–a major theme in the KANU to NARC transition and the original Kibaki inauguration, and well understood to be the Achilles Heel for Kenya’s economy. And as I have noted before, the Jubilee platform’s only “plank” relating to governance is a proposal for active state intervention in the civil society arena.
Museveni and his NRM have been associated with the KANU of Moi and of Uhuru and Ruto over the years and at some level Kenya post-Moi has been an outlier in the East African Community of Uganda, Rwanda, Burundi and Tanzania. As well as Museveni, one naturally thinks of Rwanda’s Paul Kagame and the recently departed Meles Zenawi in Ethiopia as authoritarian heads of state who could count on strong support in Washington at a variety of levels–both in terms of underlying security relationships and friendships with American politicians who could be counted on for advocacy in the face of international controversy.
Uhuru himself, quite the contrary to his short-lived campaign rhetoric this year as an ICC indictee, has been a favorite Kenyan politician of many in the American establishment. He talks the talk well. He was educated in the U.S. and has been a frequent visitor. A “family friend” of former Assistant Secretary of State Frazer by reputation. Rich even by American standards, and a business owner whose inherited fortune was generationally cleansed from openly kleptocratic political origins. Before the confirmation of the ICC charges but after the 2008 post-election violence when the issues with the alleged funding of the Mungiki attacks in Naivasha and Nakuru were well known, he was a primary lobbyist for the Kenyan government in the U.S. seeking things like a Millennium Challenge Corporation Compact. Before the 2007 election, he entertained official American visitors including Senator Obama as the “Official Leader of the Opposition”. He was singled out for positive recognition in a report by CIPE, the Center for International Private Enterprise (the National Endowment for Democracy’s core institute under the United States Chamber of Commerce) and was spoken of in government as a Kenyan who “says the right things”.
. . . In all likelihood, the first round of voting will lead to a runoff election on April 10 between Raila Odinga, the current prime minister of Kenya’s hastily-constructed unity government, and Uhuru Kenyatta, Kenya’s deputy Prime Minster and the son of Kenya’s first president. The tightness of the race bodes ill; it is unlikely that either side will be able to score a quick victory, and it will not take much vote rigging to influence the election’s outcome. The losing party is virtually certain, therefore, to contest the results. Some violence, in other words, seems all but assured. The question is how long it will last, whether it will spread nationwide, and how many people will be displaced, injured, or killed…
Most of the piece is behind the firewall so I won’t copy it here, but she goes on to argue that U.S. interests counsel what I would characterize as essentially a business as usual approach to Uhuru (and by implication of course Ruto) unless and until they end up eventually convicted by the ICC. I shared this with a friend in Washington with the comment that this could be read as a Washington argument not to get too exercised if Uhuru helped himself to some extra votes to win–the risk of instability was very high and the downside to having Uhuru in office wasn’t that great.
The Carter Center has released another round of reporting on the election, “slamming” the IEBC, but concluding with a factually unsupported pronouncement that in spite of the electoral commission’s many failures their announced result happened to “reflect the will of the Kenyan people”. This was language being tossed around in certain circles before the election with reference to Moi’s races back in the ’90s. How to say an election is bad but the incumbent or other beneficiary of the state misconduct would have won anyway? The big difference in 2013, of course, should have been that the Kenyan voters had approved–with much U.S. support–a new constitution that was supposed to end the “first past the post” system that so benefited Moi and require a “runoff to majority”. When you read the Carter Center report it is clear that there is no way they can offer any substantive assurance at all for the IEBC’s award of just enough to Uhuru to avoid that runoff.
But, there are interests at stake besides justice–there is also “stability”, and “peacekeeping” troops in Somalia, etc., etc.
So we shall see. I hope for the best for Kenya, but the Uhuruto ascendancy looks to me like a big win for tribal chauvinism and a real step back in terms of democratic ideals. Kenya is very different from either Rwanda or Ethiopia, and from Uganda, too. Whatever excuses one makes for Kagame and Museveni in their own postwar environments, to me, ought not to apply to Kenyatta or Uhuru in Kenya.