Kenya’s election “compromised and contaminated” or “compromised and bungled” by IEBC finds Supreme Court

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.)

Update: Business Daily: “”Supreme  Court says IEBC failures led to poll nullification”.   

Globe and Mail:  “Kenyan Court blasts Election Commission as political tensions rise”

 

Have ODM and TNA run their course in Kenya?

UhuRuto 2013 sign downtown
The great puzzle for those of us who have worked on “democracy promotion” or “democracy support” in Kenya has been whether there is something that can be done to assist Kenyans in building meaningful, coherent political parties that are more than amorphous vehicles for individual ambitions and a “tribal” spoils system.  The record in this regard has been discouraging.  When I was with IRI in 2007-08, one of my European counterparts of long experience explained that his organization had concluded that the effort was simply not fruitful and resources were better spent in other areas.

At this point I am afraid that we see some history repeating itself.  TNA is having difficulties with the inattention of its titular leader, President Kenyatta.  It is not hard to see TNA now as simply a vessel for Uhuru’s campaign, a means that he created to line up his core Kikuyu support when, supposedly, there was significant sentiment among the elites to find alternatives due to the difficulties of the ICC charges, and even the notion that it might be safer to chose Mudavadi or someone else who was an amenable insider but a member of another tribe.  Certainly Uhuru’s record as a party builder is not encouraging.  After being tapped as KANU leader by Moi in 2002 and losing to Kibaki he kept leadership of the party (with Ruto as a Secretary General) and was one of the leading figures in the formation of the Orange Democratic Movement as leader of the Official Opposition in Parliament, campaigning against the “Wako Draft” constitution in Central Province during the November 2005 referendum.

Nonetheless, as things were shaking out to nominate a presidential candidate for the ODM side in the second half of 2007, Uhuru made the unprecedented move as leader of the parliamentary opposition to cross over to support Kibaki’s re-election.  Moi also announced his support for Kibaki in this time frame.  Uhuru kept formal control of KANU but the party was gutted as most of the potential KANU voters in the Rift Valley went with Raila, along with Ruto who formally joined ODM, contested for the nomination there and served as a key figure in the “Pentagon”.  Then Uhuru himself struck out to form TNA for the 2012-13 race.

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The Year Ahead in Tanzanian Politics

Commentary in the East African suggests that former prime minister Edward Lowassa is the man to beat in the race to succeed Jakaya Kikwete as president next year.  Lowassa resigned in 2007 over a scandal involving a power generation contract.  (The energy sector has continued to suffer from corruption scandals.)

Mr Lowassa seems to have gathered many supporters who have stuck with him through his troubled career. In 1995, he was among the more than 15 CCM aspirants for the presidency but he was stopped in his tracks by then retired president Julius Nyerere, who found him to have enriched himself rather too fast.

Mr Lowassa was eliminated by Nyerere’s fiat and that contest within the party was eventually won by Benjamin Mkapa (over Kikwete), who also won the election.

It remains to be seen whether the power-plant scandal will be resuscitated to haunt Mr Lowassa’s campaign or whether he will use this campaign to reiterate what he has said in party caucuses — that whatever he had done he had done with the full knowledge of Kikwete and with his approval and/or instructions.

For a deeper look at the state of Tanzania’s ruling party and the potential restructuring of government under a new constitution, see Hanno Bankamp’s piece in Think Africa Press, “CCM’s Identity Crisis: Comebacks, Constitution and Corruption in Tanzania”.

In late news, Tanzania’s Attorney General appealed to members of the Constituent Assembly–assigned to review and revise the latest daft constitution for a referendum in advance of the 2015 election–not to use bribery in the election of their Chairman and Vice Chairman.

 

Kenya: 2007 and 2013 media bills bookend the demise of the “reform agenda” as Jubilee Government gets bad marks from public

I hope everyone has had a good Christmas. I am grateful for a comfortable time with family, while saddened by news that a friend in Kenya lost a family member to a shooting by the Police. All of us interested in East Africa are watching South Sudan with great concern.

On Kenya, beyond the steady heartache of one more in the steady stream of police killings, as another year ends, I am struck by one point of clear change from my initial arrival in Nairobi in 2007 to now. The passage of the draconian 2013 Media Bill was a major setback for democracy. The bill seemed clearly unconstitutional when it originally passed parliament. After both Kenyatta and Ruto assured that they would respect the Constitution and the spirit of a free press, Kenyatta sent the bill back with proposed changes making it on balance worse, after which it was passed and signed into law.

Back in 2007 a far less noxious media regulation bill passed parliament just after I moved to Nairobi in June. U.S. Ambassador Ranneberger along with most of the rest of the diplomatic community representing leading democracies spoke out strongly against the threatened intrusion on press freedom. Kibaki declined to sign the bill and it was much watered down. While there was a certain amount of self-censorship the press remained relatively vibrant during the 2007 election campaign. Now that a more troubling law has actually been enacted the diplomatic community including the United States has been largely silent. While there have been protests by journalists and civil society, the Government has predictably brushed these aside, but has not faced open diplomatic pressure from donors.

For some years after the 2007 election debacle the United States was consistently promoting what we called “the reform agenda”. While all the parameters of “reform” were not specified, I think it is fair to say that at its core it was about the continued shifting of power away from a traditionally dictatorial presidency to develop democratic institutions. The original post-Cold War reforms were Moi’s acceptance of changing the law to allow non-KANU parties and the imposition of term limits which led to Kibaki facing Uhuru instead of Moi in 2002. The NARC coalition from that 2002 election finally came completely apart over the executive power issue in the 2005 constitutional referendum on the “Wako Draft” in which the “no” campaign gave rise to the Orange Democratic Movement. “The next big thing” was another effort at constitutional change to disburse and devolve power after the 2007 fiasco at the ECK, where the tallies were changed to keep power with the incumbent president and the country erupted in what seemed to many to be a potential civil war before a deal supposed to deliver a “sharing” of executive power. After a reform constitution was finally passed in the 2010 referendum, the “reform agenda” emphasis has been, in theory, on “implementation”.

The new Media Bill not only repudiates basic constitutionally enshrined values of a free press, but the changes from first passage to final enactment shift power from Parliament to State House. This is only one of the most conspicuous of many areas where the Jubilee Government is moving to re-centralize power with the Executive. May the “Reform Agenda” rest in peace.

In the meantime, the latest Ipsos Synovate poll released this week finds absolute majorities of Kenyans nationwide and in each “province” but Central concluding that the country is moving “in the wrong direction” with a higher percentage of Kenyans trusting the media than any other institution.

“Do not be afraid. The government will protect you.” KANU Revivalists offer alternative to democratic values in Kenya

Shortly after I arrived in Kenya in mid-2007, Kenya’s parliament passed a media regulation bill which faced a storm of international diplomatic criticism as well as domestic protest.

President Kibaki at the time backed down and sent the bill back to Parliament where it was ultimately somewhat watered down. New legislation passed last week goes much further than what was dared under the first Kibaki Administration, in spite of the new constitution. This time there doesn’t seem to be much reaction from international governments–we give our aid money quietly and tiptoe so as not to step on important toes since we have been aggressively accused of imperialism and racism for not intervening to stop the ICC prosecutions of The Now Elected for the mayhem after the 2007 election–but the international media is much more aware of these issues than they were in 2007.

And if the media bill has been put in some limbo, it has been followed by the introduction of the Jubilee bill to assert more state control over civil society and restrict and channel foreign funding to non-governmental organizations. The Uhuruto team had not shown its cards on attacking the media during the election campaign, but civil society was always a known target. See Attacks on Kenyan Civil Society prefigured in Jubilee Manifesto, my post from March this year.  More freedom for the media and for civil society means more restraints on politicians in control of government.  Restricting civil society can help maximize the opportunity to control the media, and vice versa.

Kenyans are confronted once again by the hard choice of whether they are willing to challenge their “leaders” in governmental power to maintain their individual freedoms as citizens.

Uhuru Kenyatta stayed with KANU throughout his life through the formation of TNA as a vehicle for his presidential campaign in this year’s race.  Other than running in elections himself, he has not given much indication over the years that I am aware of being concerned for opening the democratic space and by running as “Moi’s Project” as the KANU nominee in 2002 he chose the old banner.  Of course when you are one of the richest men in Africa, and your mother is one of the richest women, because of what your father took for himself and his family when he was the one-party ruler, you find yourself with plenty of freedom of speech and freedom to politically organize regardless of the details of the system that confront the small people.

In the wake of the Westgate attack, and the desire of the government to avoid scrutiny or challenge, I am reminded poignantly of what Kibaki said when he first ventured out thirteen days after he had himself sworn in for his second term:

January 9, 2008–13 days after the 2007 election (NBC News):

Kibaki made his first trip to a trouble spot, addressing more than 1,000 refugees in western Kenya, many of whom had fled blazing homes, pursued by rock-throwing mobs wielding machetes and bows and arrows.
“Do not be afraid. The government will protect you. Nobody is going to be chased from where they live,” Kibaki said at a school transformed into a camp for the displaced in the corn-farming community of Burnt Forest. “Those who have been inciting people and brought this mayhem will be brought to justice.”
He indicated he would not consider demands for a new election or vote recount.
The election “is finished, and anybody who thinks they can turn it around should know that it’s not possible and it will never be possible,” he said.

Perhaps for those Kenyans that feel sure that the government will always protect them, there is no need for these things of a free media, civil society, the questioning of elections.  Kenya could just go back to the Chinese model of the one party state.  Kenyans who prefer a freer, more empowered citizenship as a matter of values, or who don’t feel they can count on the government to always protect them will have to decide to engage to protect those rights which are of course expressed in law in the new constitution.  See “CIC (Commission for the Implementation of the Constitution) says new media law unconstitutional”, Daily Nation.

Kenyan Media

Kenyan Media

“Peace,” “Truth” and American commentary in the wake of the election

“Peace versus Truth: A Story of Unnecessary Trade-Offs”.

“Indictee for President!”  Michella Wrong writes in the New York Times Latitude blog on how “being prosecuted by the ICC helped Uhuru Kenyatta’s chances in the Kenyan election.”  I would go a little further back and identify the ICC indictment as the impetus for Uhuru’s launching of his TNA party and his run for President in the first place, through his emergence as the dominant Kikuyu candidate.  In other words, absent the ICC factor, I doubt Kenyatta would have run, or at least run seriously, and if he had, I doubt he would have gotten very far early on.

Here is Jendayi Frazer’s solo interview on PBS NewsHour last night: “Western Allies Have ‘Muted’ Response to Kenya’s Presidential Election”:  

GWEN IFILL: After all the violence in 2007 and 2008 after the last presidential election, we were all bracing to see if the same thing would happen this time. And so far it has not. Why do you think that is?

JENDAYI FRAZER: Right.

Well, I think the Kenyans learned lessons from 2007. And the civil society very much was guarding their country and guarding against future violence.

They also had this election under entirely new institutions. There’s a brand-new constitution. There’s a de-evolution of power from the center, from the presidency, to governors of 47 counties. There’s county assemblies. And so I think the diffusion of power, the expectations about their new institutions and the lessons learned from 2007 account for the lack of violence this time.

Frazer is right in identifying why the situation in 2013 was different and “the same thing” that happened in 2007-08 was not going to happen this year.  There is an irony, however, for her to invoke the work of Kenyan civil society, and the reforms of the new Constitution, in the context of her advocacy now in regard to this election when William Ruto was the leader of the “reds” who campaigned against the Constitution and  Uhuru Kenyatta was seen as a “watermelon”, nominally “green” or pro-Constitution on the surface, but “red” in substance.  The “Uhuruto” Jubillee Coalition took the position pre-election that it wished to restrict civil society if it took power.

Otherwise, there is much that is very telling in this solo interview about how the American media covers politics in the “developing world” and Africa in particular, and much that is telling about America’s official and unofficial interaction with foreign politicians and leaders.

It should be noted that for someone that served only a short time in the State Department, Frazier has positioned herself as a dominant figure in the Washington media in commenting on this election.  A plausible reason for this relates to the fact that she has deeper roots in the Kenyan scene than her service as Ambassador to South Africa and then Assistant Secretary of State for African Affairs in the Bush Administration.  These roots, however, are not discussed publicly in the context of her commentary on this Kenyan election.  By reputation in Kenya, Frazer is identified widely but privately as a close family friend of the Kenyattas,  Read the following exchange in this context:

GWEN IFILL: Uhuru Kenyatta, you have met him. You know something of him. What do we know about him, other than he’s the son of a very famous leader of the country, a very wealthy man and now is under this cloud?

JENDAYI FRAZER: Well, he’s also very much a person who respects the West. He was educated in the United States. He’s been pro-Western in his outlook.

He’s been the minister of finance before and the deputy prime minister. He’s always had strong relations with the United States. Now, the case against him is problematic. And as it was stated, it’s falling apart. The co-conspirators have all — that were charged with him are charged with attending a particular meeting at statehouse and in that meeting planning reprisals against the violence that was being meted out against the Kikuyus.

But the key eyewitness has now said that he lied and he’s been changing his testimony and has — and even said that he’s taken bribes. And so the case is falling apart.

There is much that is unsaid that may be of vital import.  One question is simply whether Dr. Frazer, especially as a private citizen engaging with this is in a position to be objective about Kenyatta personally beyond describing the basic relationship to the U.S.  Second, and relatedly, there is much more involved here than just the actual status of ICC prosecution’s case: there is also the bigger moral question of whether or not Kenyatta, and his running mate Ruto, are in fact innocent of being directly involved in deliberate killing of innocent Kenyans on the basis of their ethnicity for instrumental political reasons.

From a standpoint of pragmatic realpolitik, as well as for Western private and business interests, it might be convenient now for the ICC cases, especially the case against Kenyatta, to “go away” to protect the ability to do “business as usual”.  Frazer is right that Kenyatta has had ties in the U.S.–he would have been a favorite of some others in the U.S. but for the post-election violence in 2008.  But I do not believe that there are very many Kenyans at all–whether Kenyatta voters or not–who do believe that both Kenyatta and Ruto did not in fact do in essence, if not in exact detail that can be proven in court now, what they are accused of doing in terms of engaging in leadership of “militia” killings.  Kenyatta’s appeal in fact relates to the notion that the use of the Mungiki to kill in the eastern Rift Valley was in some notion “defensive” of Kikuyu killed by members of other tribes in other places further west in the Rift Valley (what Ruto is accused of being involved in).

Part of what is happening here is that by attacking the shortcomings of the ICC and the Western media among others, some are seeking to relieve themselves of some of the moral tension associated with the haunting question of whether “peace” is being bought by the (possible) election of “killers”.

In this context, here is a link to Dr. Frazer’s aggressive interview with Michelle Martin on NPR’s “Tell Me More” this afternoon.

President Obama releases message to Kenyans on election

President Obama’s Message to the People of Kenya
February 5, 2013

Habari yako. Over the years, I have been greatly moved by the warmth
and spirit – the strength and resolve – of the Kenyan people. And I’ve
been grateful for my connection to Kenya, and the way you’ve welcomed
me and my family to your beautiful country – from my father’s village
in Alego, to bustling Nairobi.

In my visits, I’ve seen your progress. Kenya has lifted people from
poverty, built an emerging democracy and civil society, and sustained
a spirit of hope in the face of great difficulty. After the turmoil of
five years ago, you’ve worked to rebuild communities, reform
institutions and pass a new constitution.

Now, Kenya must take the next step in March, with the first national
elections under your new constitution.

We all know what makes for successful elections. Kenya must reject
intimidation and violence, and allow a free and fair vote. Kenyans
must resolve disputes in the courts, not in the streets. Above all,
the people of Kenya must come together, before and after the election,
to carry on the work of building your country.

The choice of who will lead Kenya is up to the Kenyan people. The
United States does not endorse any candidate for office, but we do
support an election that is peaceful and reflects the will of the
people.

This election can be another milestone toward a truly democratic Kenya
defined by the rule of law and strong institutions. If you take that
step, and reject a path of violence and division, then Kenya can move
forward towards prosperity and opportunity that unleashes the
extraordinary talents of your people – especially young people. If you
continue to move forward, you can build a just Kenya that rejects
corruption, and respects the rights and dignity of all Kenyans.

This is a moment for the people of Kenya to come together, instead of
tearing apart. If you do, you can show the world that you are not just
a member of a tribe or ethnic group, but citizens of a great and proud
nation. I can’t imagine a better way to mark the 50th anniversary of
Kenyan independence. And I say to all of you who are willing to walk
this path of progress-you will continue to have a strong friend and
partner in the United States of America. Kwaheri

 

Worth reading on Kenyan pre-election violence, and challenge ahead for March election

“John Githongo: Former Anti-Corruption Czar on a mission to change Kenyan leadership” from November 2012 Think Business at “Kenyan Magazines”:

Based on Inuka Kenya’s mapping using information provided by credible Kenyan organisations and partners, more than 480 people have been killed since January 2012 in this violence. “It is pre-election violence associated with the new boundaries and the struggle for power. It is so insidious that it is almost passing unnoticed,” says John.

The new constitution, he adds, poses a lot of challenges for the transition process in terms of implementation. We have created new boundaries, instituted a system of devolved government and initiated new laws. Even the more developed economies have not attempted to implement the number of changes we are attempting to implement at the moment at one go. “We are a very versatile people but we will be tested in a way that is unprecedented.” He worries that the danger of things falling apart is that the disillusionment that might follow will cause Kenya to implode, not to explode, “Like an ice cream melting in the sun.”

“The biggest challenge the IEBC faces” by Wycliffe Muga in The Star.

 

Preparations for Kenyan Election Kick-Off With Start of Multi-Step Process to Set Constituencies and Boundaries

 

From Wambui Ndonga on Capital FM:

NAIROBI, Kenya, Jan 9 – Kenyans have the next 21 days to submit their views on a preliminary report proposing the review of electoral boundaries that was launched on

Monday by the Independent Electoral and Boundaries Commission (IEBC).

The commission said it would conduct public hearings in all the 47 counties to get Kenyans’ views on the boundaries for constituencies and wards.

IEBC Chairman Issack Hassan said his team would also accept emails and written submissions hand delivered to the Constituency Election Coordination Office.

The schedules for the public hearings will be released on Tuesday.

“We are going to have eight teams going round the country to collect views from the public on what they think. The teams will go round the country for 21 days to hear out Kenyans,” he said.

However concerns have already started mounting over the report, which is almost a replica of the report prepared by the now defunct Interim Independent Boundaries Review Commission (IIBRC), led by Andrew Ligale.

Hassan explained that the IEBC had to use the IIBRC report as their primary reference point as required by the Constitution and didn’t have much choice. The IEBC also used the parliamentary report on the Ligale document as its second reference point.

He further asked Kenyans to exercise decorum and remain objective as they familiarised themselves with the contents of the report so as to ensure that the country attained the gains of devolution.

“Allow me to make a humble plea to all Kenyans, particularly to politicians; let us exercise restraint. The commission recognises the sensitivity of some of the issues at hand and we reiterate our devotion to diligently uphold the law,” he assured.

After the 21-day period for public participation, the commission will take 14 days to look into any concerns raised before considering them in the final report. The report will then be forwarded to the parliamentary committee on Justice and Legal Affairs, which will again take another 14 days to scrutinise it before presenting it in Parliament.

Members of Parliament will then have seven days to debate the report and adopt it with or without amendments after which it will be returned to the IEBC for an extra 14 days before it is gazetted and published.

“Kenyans will then get 30 days to raise their objections at the High Court which will take 30 days to resolve. Only then can the IEBC proceed to map out the new electoral units for purposes of voter registration and other electoral processes,” he explained.

Although the IEBC Act states that the High Court should determine any such issues within 30 days, the Constitution states that such an application shall be heard and determined within three months from the date it was filed.

. . . .

This should be interesting. If everything goes exceedingly well, Kenyans will be within a few months ready to register to vote in new constituencies for the next election.

A key variable to watch for in the process will be transparency and how serious “the donors” supporting the process are about making sure that Kenyans ultimately know how and why they end up with the constituencies they end up with.

Kenyan Supreme Court to begin hearings to determine next election date; preparations lag

Although the Supreme Court is set to begin preliminary hearings Tuesday on the question of the interpretation of the new constitution to determine the proper date for the first general election, the Cabinet with substantial support among MPs will seek to move its bill in Parliament to amend the constitution to set elections in
December rather than August.  Justice Minister Mutula Kilonzo says that it is already too late:  “As the minister of Justice and in charge of election matters, I cannot give you an election in August [2012].”

Anxiety is building in the august House over the date of the next polls with most of the MPs keen to stay in the House until the end of “their unexpired term” according to the Sixth Schedule of the Constitution.

While Cabinet ministers have vowed to push the Bill to amend the Constitution to alter the election date, some MPs among them Gatanga’s Peter Kenneth (left) and Gwassi’s John Mbadi have vowed that they will scuttle any plan to push for December elections.

On Monday, the Gwassi MP repeated the threats to oppose the Bill in the House, terming it as an “affront to the Judiciary”.

Unfortunately, the Independent Election and Boundaries Commission has not yet been established and potential members are being vetted, so there is clearly a lot of work remaining to get ready for the next election.

Kenyan Civil Society will need to play a key role in serving as a “watchdog” throughout the election preparations.  Resources will be available from international donors to support the process, as they were in 2007, but as we have seen, these resources do not help if they are not ulimately used.