Kenya Election: Overall Observation on Observations [Updated]

This is a quote from an e-mail I sent to an expert back in the U.S. on my way home from Kenya, where I am now. As far as a candid summary of what I think happened in the Kenya elections:

Overall situation with observers was that they were extremely reticent to say anything of substance because of the fear of violence and the fact that IEBC process was ongoing. Further, because of Jubilee attacks on the British High Commission and the West more generally (in my opinion at least) there was an extra level of reticence to say anything that would confront the Government of Kenya election process. We ended up with little impact, if not window dressing, as far as I can see. Someday they will write final reports that might, I hope, involve a deeper look into the original vote count and subsequent events, as well as the prior problems that led to a small voter registration pool, etc.

See Robyn Dixon’s piece in the Los Angeles Times , “Kenya election over, dispute over outcome heads to Supreme Court”::

The narrow margin and repeated failures of the election commission raise the possibility that the Supreme Court could call for an audit of the election result, analysts said.

Kenyatta got 50.07% of the vote, crossing the line with a margin of some 8,000 votes out of more than 12 million cast.

Despite the failures, Kenya’s news media were muted in their reportage of the commission problems. Even international observers have tip-toed around the subject.
However, respected Kenyan anti-corruption crusader John Githongo called the election a failure Sunday. Githongo, an election monitor, said for months a group of community organizations had tried in vain to warn the election commission of problems in its systems and approach.

“In my personal opinion, it’s a failed election,” Githongo said in an interview with The Times. “I think the IEBC performance was catastrophic. I was part of a group of organizations that repeatedly warned them that these problems were there and on the way.”

Commission Chairman Issack Hassan denied the problems and failed to turn up for meetings with the organizations, according to Githongo.

Githongo said Kenyans were so keen to avoid a repeat of the violence that followed the disputed 2007 poll that many, especially in the Kenyan media, kept silent about the obvious problems in the election commission.

. . . .

Githongo’s criticisms come after reports that Safaricom, the mobile phone provider involved in the electronic system that was supposed to transmit results to the central tallying point, also warned the commission of looming failures in the weeks before the election, and was also ignored.

Patrick Smith, editor of the journal Africa Confidential, said Western officials privately condemned the commission’s appalling performance but said nothing publicly “for fear of being seen as interfering in the election”.

. . . .

Carter Center release; Initial observations on the “Frazer v. Carson” controversy

The Carter Center 2013 EOM Pre-Election Statement was released today based on the work so far of 14 long term observers, who will later be joined by short term observers from 19 countries. Not surprisingly, the Statement has no particular revelations pro or con for those following the election situation. While it primarily exhorts good future behavior, the statement generally praises the IEBC on its internal preparatory work while stressing concerns about the adequacy of voter education to date. It praises the IEBC’s willingness to work with judiciary, while noting the huge volume of cases that might arise from election challenges. Discussion of security seems to me quite generic under the circumstances, but read it for yourself.

The environment for comment from “outsiders” is difficult given the growing tension in the closing days of the campaign. With yesterday’s incident with an American academic/investor who was a George W. Bush administration Assistant Secretary of State for African Affairs accusing the serving American Assistant Secretary of State for African Affairs of “essentially meddling” in the Kenyan election for noting that while Kenyans should freely elect their choice of candidates such choices did have “consequences” in their external relationships, I would think it becomes that much more challenging for the Carter Center or other observers to push on any particular pre-election issues.

My initial reaction to Jendayi Frazer’s high profile “denouncement” of her successor is to say that while I would strongly defend Ms. Frazer’s right as a private citizen in the United States to dissent from and critique American foreign policy (as I have done myself), I personally think her comments were quite unfortunate under the circumstances. To me, if her concern was to try to improve on American performance by criticizing current officials’ actions, she would have done better to hold her tongue in public for less than two weeks until the vote was over. The timing of her attack on Johnnie Carson, combined with her specific characterization of the ICC’s case against Uhuru Kenyatta, in the context of her own highly controversial role in 2007-08 in the last election, could suggest that perhaps Ms. Frazer herself was seeking to be a public player in the Kenyan campaign rather than advocating for “non-interference”.

Part of the situation here is that Frazer has a bully pulpit by virtue of her time in the government position before Carson was appointed to serve the current administration. When she speaks in this way, as a practical matter she is identified in the media and otherwise primarily as a recent former senior appointee in the State Department, rather than as someone launching business enterprises, as a professor or any other role or roles that she may play as a private citizen in the context of East Africa today, as opposed to her role five years ago.

More to the point for me is how disappointing Frazer’s statement is for people in Kenya who have supported the rights of the victims of the 2007-08 post-election violence and supported “the reform agenda” and the long, hard and dangerous work of seeking some small measure of justice in whatever legal venue. Kenya is in fact a member of the ICC even if the United States is not; the ICC is involved only because Kenya’s parliament, including Uhuru Kenyatta and William Ruto, voted “don’t be vague, go to the Hague”. Kenya’s government committed to cooperate with the ICC before what Frazer calls a weak case was in fact confirmed to go forward to trial by the Court.

Given that the United States is again the leading donor in the $100 million effort to support the Kenyan election process, I personally don’t think that Carson’s statement was outside the boundaries of appropriate diplomacy in the context of the characterization of the President’s immediately proceeding statement being given in the Kenyan campaign, vis-a-vis the statements of the European donors. There is really no precedent that fits the situation with the Kenyan election and the candidates facing ICC trial and I doubt anyone is very clear about what the consequences of electing an ICC indictee as president would be — but it doesn’t seem controvertible to me to note that there would certainly be some.

State Department to Kabila on DRC Presidential Election: “Nevermind”?

The State Department issued a Valentines evening statement on the “ongoing” electoral “process” in the DRC.  Hard to know what the point of this is.  Perhaps it is simply an example of the maxim “if you don’t have anything nice to say, don’t say anything.”  Maybe it means:  “since we are looking the other way on the presidential election, we do expect that surely you can do a bit of something on some of these parliamentary races, please.”  I’ll have to defer to the “Congo Watchers” and be interested to hear more from the various election observations over time.

Ongoing Electoral Process in the Democratic Republic of the Congo (DRC)

Press Statement

Victoria Nuland
Department Spokesperson, Office of the Spokesperson
Washington, DC
February 14, 2012

The United States continues to closely monitor the electoral process in the Democratic Republic of the Congo, and the hundreds of legal disputes against some legislative election results. We urge Congolese authorities to conduct a full, thorough, and transparent investigation into these disputes, and to release vote tabulation and other records related to the elections and their outcome.

We remain deeply concerned about multiple allegations of human rights abuses by security forces, including illegal and arbitrary detentions throughout the electoral process. The Congolese government should fully investigate such reports, hold anyone found responsible fully accountable, and take concrete steps to ensure that security forces exercise restraint and respect people’s rights of assembly and of peaceful protest. We call on all Congolese leaders and their supporters to act responsibly and to publicly renounce violence.

Despite these concerns, we encourage all political parties to participate fully when the National Assembly is seated in order to preserve and protect the basic democratic principle of representative government in the Congo. The United States remains steadfast in its support of the Congolese people as they work to build a brighter, more democratic future for the DRC.

PRN: 2012/220

 

Related:  U.S. and other Western donors support review of election irregularities in DRC–offer technical assistance

Carter Center calls it as they see it in DRC

DRC: “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

 

U.S. and other Western donors support review of election irregularities in DRC–offer technical assistance

The U.S. appears to have paid attention and avoided the pitfall of glossing over the questions about the election.

BBC reports on remarks by the U.S. Ambassador:

But the results’ credibility has been criticised by the EU, the Carter Center and other election monitors.

The US ambassador to the country said there had been several “irregularities”.

“The United States believes that the management and technical execution of these elections were seriously flawed,” Ambassador James Entwistle said in a statement to Reuters news agency.

“[They] lacked transparency and did not measure up to the positive democratic gains we have seen in recent African elections,” he said.

Mr Entwistle said that the US and other Western donors were offering technical assistance to the Congolese to review irregularities identified by observer missions, an offer which has already been welcomed by the country’s prime minister, he said.

The country’s Supreme Court must decide by 17 December whether or not to validate provisional results.

.  .  .  .

And the VOA reports on official comments from the State Department in Washington:

In a statement Wednesday, State Department spokeswoman Victoria Nuland said the U.S. assessment is based on reports from observation teams fielded by the U.S. and other embassies, as well as by independent election monitoring groups.

Nuland said it was not clear, however, whether the irregularities and lack of transparency were enough to change the outcome of the election.

She calls on Congolese authorities to conduct a “rapid technical review” of the electoral process which she says will help determine whether the irregularities resulted from poor organization or outright fraud. She said the U.S. is ready to give its “technical assistance,” for the review.

Carter Center calls it as they see it in DRC

Release from Carter Center: DRC Presidential Election Results Lack Credibility

The Carter Center finds the provisional presidential election results announced by the Independent National Election Commission (CENI) on Dec. 9 in the Democratic Republic of the Congo to lack credibility. CENI results point to the re-election of incumbent President Joseph Kabila with 49 percent of the vote followed by Etienne Tshisekedi with 32 percent and Vital Kamerhe with 7.7 percent.  Voter turnout was 58 percent.

Carter Center observers reported that the quality and integrity of the vote tabulation process has varied across the country, ranging from the proper application of procedures to serious irregularities, including the loss of nearly 2,000 polling station results in Kinshasa.  .  .  .

.  .  .  .  The Carter Center is therefore unable to provide independent verification of the accuracy of the overall results or the degree to which they reflect the will of the Congolese people.

DRC: “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

“Congo Opposition Rejects Early Poll Results,” Financial Times [It is a bad sign that “the money quote” is anonymous]:

.  .  .  .

According to the latest partial results, Mr Kabila is winning most support from the mining-rich Katanga province, his stronghold. Some observers have questioned the use of an unaudited voter registration system, which allotted Katanga 4.6m voters, 50 per cent more than the capital Kinshasa, home to 10m people.

A UN Security Council meeting last week noted some electoral irregularities but pressed for a peaceful conclusion to the polls.

“There is no [international] appetite to press for transparency, but just pushing to accept whatever result [the poll commission] comes up with is not going to bring peace,” one Congo expert told the FT. “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

Joshua Marks, of the National Endowment for Democracy, a US-funded foundation, said: “The Security Council wants to avoid violence at all costs. He added: “It’s patronising to the Congolese people. . . You’re still going to have these unresolved grievances in the country and an ever larger number of people against the Kabila regime.”

Despite mineral wealth in copper, gold and diamonds, Congo has slipped to the bottom of global development rankings under Mr Kabila’s latest term, as the country recovers from the 1998-2003 war in which an estimated 5m people died. A clutch of rebel militias still hold sway in the east.

A real election requires credible preparation by a credible election commission and credible dispute resolution mechanisms.  The DRC election has already gone this far (past the actual voting) without the “international community” blowing the whistle.  The Carter Center and the EU observation missions have made clear that there are serious issues with the preparation and execution of the election by the government.   The actors who have supported the process to date need to stay engaged and stay committed as the process continues.

Congolese voters need hope that it makes some difference who they voted for, just like voters anywhere are entitled to expect.  A pretense that the voters cannot believe in can be expected to drive violence.

Here is the Nov. 28 preliminary post-election statement from the Carter Center election observation mission.

Election Observation–Diplomacy or Assistance?

At the suggestion of a Kenyan blogger active in democracy issues whom I have long followed and admired, I am going to raise some discussion here about the funding of election observations, who “pays the piper” and how that may matter in practice from my experience.

This will be an ongoing process and I will appreciate any feedback and discussion. One of the things that makes this difficult for me is that I submitted complaints about how the U.S. Ambassador interacted with the 2007 Kenyan Election Observation and Exit Poll programs that I was managing for IRI with USAID funding to the “hotlines” for the Inspectors General of the State Department and USAID, but no substantive action resulted and much of what I have been concerned about has not seen print anywhere. And the same Ambassador is still running my country’s governmental presence in Kenya. So, given that my reason and intention for going to Kenya and getting involved in these things was to be helpful (to Kenyans) what is helpful to say now, recognizing that the past cannot be undone?

Let me start by fleshing out a distinction between types of observations: “diplomatic” observations and “assistance” observations. The goal of a diplomat of course is to represent his country and advance its interests as determined by policy makers. On the other hand, the immediate goal of “foreign assistance”, including “democracy promotion” or “democracy support” is presumably to help others, even though this may be done for any number of reasons involving self-interest. The fundamental problem we had with the IRI observation for Kenya in 2007 was that the Ambassador viewed the observation as a direct part of his endeavors as the controlling diplomat for the U.S. in Kenya in the lead up to the election, whereas IRI, prior to the election, viewed the effort as within an established practice for observations conducted by non-governmental organizations, with funding provided as a matter of foreign assistance through the U.S. Agency for International Development. IRI, like NDI and the Carter Center, is party to a formal international agreement and accompanying code of conduct governing international election observation missions which is intended to provide for independence and objectivity.

It is important not to underestimate the significance of the reorganization of U.S. foreign assistance during the Clinton and Bush Administration, and now continued under the Obama Administration, which places USAID directly inside the State Department [for budget and planning purposes rather than as a matter of formal structure]. As a matter of bureaucratic and political reality, this may make any clear distinction between diplomacy and assistance impossible, especially in the field where an ambassador has largely unchecked powers. When you are dealing with feeding people, or providing health care or regular security training, for example, there may not be immediate tension once you set priorities in allocating resources, but in the case of an election observation mission, you are either committed to the election process in a neutral and objective way or you are not. So if people in the State Department at the level of Ambassador or higher, have the view that diplomatic interests are served by things other than strict neutrality and objectivity in an election campaign, and the State Department controls foreign assistance programs through USAID that provide election support, then as a practical matter there will be tension unless the Ambassador is truly committed to “playing by the rules”.

In Kenya in 2007 the Ambassador was directly sending out large numbers of U.S. government employees as “observers” of the election. I had been warned by USAID staff that the Ambassador considered the IRI international observation mission to be essentially part of his program, to my surprise. Subsequently he told me this was his view himself on one of his after hours cell calls to me to try to micromanage the selection of election observation delegates. Further to my surprise, I was told that higher levels of management at USAID were not in agreement with IRI on our need for independence.

This leads into discussion of another distinction: “national” versus “international”. IRI is a U.S. organization which gets almost all its funding from a combination of the State Department (including USAID) and the National Endowment for Democracy (NED), and works internationally. Notionally, IRI is a “core institution” established under NED, along with its sister organizations NDI, CIPE (the Center for International Private Enterprise, affiliated with the U.S. Chamber of Commerce) and the Solidarity Center (affiliated with the AFL-CIO union organization), but the lion’s share of the overall dollars now come from the State Department rather than from NED. For election observations, IRI will normally include non-U.S. delegates. In the case of Kenya in 2007 there were no other NGOs working internationally that had formal election observation missions to my knowledge, but there were a variety of African organizations, and there was an international observation mission from the Commonwealth. The EU is something of a special case. The EU of course is regional and inter-governmental, but operates an election observation program with professional staffing and that is intended to operate independently.

Backing up a bit to give more context, when I arrived in Kenya at the beginning of June 2007, USAID had no plans for an election observation mission for Kenya–likewise, IRI’s Washington office did not have any desire to seek one. The Ambassador told me early on that he wanted one, and had a list of people he had in mind as delegates, but there was still no plan from USAID to fund it until later when USAID said they would “move heaven and earth” to try to meet the Ambassador’s wishes. On the last day of the fiscal year (September 30) a request for proposals was released by USAID to CEPPS, a consortium of IRI, NDI and IFES, the International Foundation for Electoral Systems. Both NDI and IFES were also already doing USAID work in Kenya for the elections, but the RFP was clearly written in such a way that it was intended for IRI rather than NDI or IFES. A small amount of money had apparently been found for the effort ($270,000) as opposed to several million that the EU spent for their observation. The RFP proposed an international election observation mission with USAID’s involvement to be the approval of the observing organization’s “key personnel”, specified as the chief delegate. Examples of other suggested delegates were given to correspond to the Ambassador’s list, but there was no contractual assertion of a right of government approval except as to the one position.

The Ambassador wanted the lead delegate to be either Connie Newman or Chester Crocker, both former Assistant Secretaries of State for African Affairs with whom he had worked closely. IRI invited both–Crocker declined due to a conflict and Newman, also an IRI board member, accepted. Nonetheless, it was IRI’s position that it was not appropriate for USAID to claim a contractual approval right over the selection of the head of the observation delegation, as opposed to IRI’s own staff. IRI submitted me and the IRI Vice President from Washington that would be the senior IRI staff person coming for the election instead, but USAID refused to accept this. As of the time of the election this was a standoff that had never been formally resolved.

The more substantive dispute was over former Ambassador to Kenya Mark Bellamy. When I mentioned Bellamy in one of the Ambassador’s calls to me regarding the delegates, he said Bellamy would be a bad choice because he was perceived as “anti-government” (i.e., critical of the Kibaki administration). Ultimately when Ranneberger got what was intended to be our final delegate list (I faxed it to him at USAID’s request two weeks before the election) he called me and gave me the full “treatment” to get Bellamy dropped, including saying that he would cancel the funding for the observation otherwise. When I passed this along to my office in Washington, IRI’s president called Jendayi Frazer on his way to the airport for a trip to Thailand over Christmas and then called the Ambassador when he got there. I got the message back that it was agreed that we would nix Bellamy but that I was to accept “no more b.s.” from the Ambassador.

In a nutshell, it was my understanding that there was complete agreement between myself and the senior IRI leadership in Washington going into the election that it was essential that we actively resist further intrusion by the Ambassador on our independence–with a common recognition that the Ambassador was attempting to involve us in things that we could not agree to. Unfortunately, once Ms. Newman arrived in Nairobi the weekend before the election she was the ranking person as an IRI board member as well as retired senior diplomat and the plans to make sure she kept her distance from the Ambassador were not effectuated and it was obvious that she was closely collaborating with him.

There was clear recognition within IRI of the need to maintain independence of the election observation function from the Ambassador’s other agenda, and a clearly expressed intention to do what needed to be done–but we failed. On balance, I don’t think we made the situation worse than it would have been if we had not done an observation at all, but we failed to help and thus wasted some money and a lot of hard work, and as Alex Halperin wrote in Slate in the first story published on our exit poll results, missed an opportunity to advance the interests of democracy.

So the lesson learned from the U.S. perspective should be, in my opinion, that U.S. policy makers need to make clear choices about whether to have “assistance” observations or “diplomatic” observations and recognize that allowing an Ambassador to call the shots makes an observation a diplomatic exercise rather than a bona-fide assistance program. There are in fact rules and regulations that are intended not to allow the Ambassador to override the process, but we have the same Ambassador getting into controversy about election assistance two years later in a new administration, so obviously the problem has not been given a high priority.

[Regarding the Slate article, I had been instructed by our press secretary in Washington not to return Mr. Halperin’s call on the exit poll, but he caught me on the cell on January 2 during the post-election violence and I said that I couldn’t confirm or deny the two reports he had regarding the results of the exit poll. He asked why we would do an exit poll and not release it and I explained that the poll included a great deal of information besides the presidential election results that was part of research that would be published so he should not assume we were trying to hide anything. (My superior in Washington later e-mailed that UCSD would not be able to publish the results under the circumstances, but they did go ahead anyway after the expiration of IRI’s six month exclusive right of publicity, as discussed in the NYTimes coverage.) I e-mailed Washington to report the conversation and noted the irony that when the story hit I was the one who was identified in the international media in defense of a decision that I disagreed with in not releasing the preliminary presidential results, or even making any statement at all about what our plans and intentions were in regard to the exit poll. A Kenyan blogger wrote that I should be subpoenaed to force IRI to disclose the results. ]

Washingtonpost: Sudan prez threatens to expel election observers

Sudan prez threatens to expel election observers

By SARAH EL DEEB
CAIRO — Sudan’s president threatened Monday to expel foreign observers over their recommendations to delay the country’s first multiparty elections in decades due in April.