Biding time on democracy in Kenya and Uganda

 

Kenya election 2007 banner for Kibaki Nakuru
Ugandan MP and presidential candidate Bobi Wine will speak at the McCain Institute’s virtual 2021 Sedona Forum. The State Department has issued a statement criticizing the January Ugandan election and announcing that it is issuing visa restrictions on unnamed Ugandan officials responsible for undermining the democratic process

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Three years after the resignations of a majority of Kenya’s election commissioners, President Uhuru Kenyatta has formally taken notice of the four vacancies and gazetted the process through which he will appoint replacements.

Why now? While the President has not explained specifically to my knowledge, his ruling Jubilee Party is seeking to have the Independent Boundaries and Electoral Commission conduct a constitutional referendum within weeks to approve amendments derived from the “Building Bridges Initiative”. (A version of a proposal to amend the constitution was passed by most of Kenya’s county assemblies positioned as a citizen initiative. It is now before Parliament where there is internal debate among proponents as to whether to approve it for referendum as is, or to allow amendments to what has already been passed by the counties, which would raise additional legal questions. Challenges to the legality of the process to date are pending in the courts already.)

Although Kenya’s courts have allowed the IEBC to continue to conduct by-elections and all its other business with only three of seven commission seats filled since the most recent resignations in April 2018 there seems to be an expectation that appointing new commissioners is desirable ahead of the referendum and the general election approaching in August 2022. Legislation signed into law last year changes the appointment powers for choosing the committee that will interview applicants for the IEBC slots and winnow choices for the President. Four of the seven screening committee members will now named by the Parliamentary Service Commission, tipping the balance in favor of the current office holders.

Remember that U.S. president Joe Biden has “been around”, with far more diplomatic experience than any of his four most recent predecessors in the White House. In 2010 as Vice President he met with Kenyan Speaker Kenneth Marende, along with President Kibaki and Prime Minister Odinga, ahead of that year’s constitutional referendum during the period in which Kenya was deciding between justice-oriented remedies and impunity for the 2007-08 Post-Election Violence.

This is what I wrote at the time, “Marende praised by U.N. Commissioner on Human Rights, meeting with Biden; South Mugirango by-election this week”:

Kenyan Speaker of Parliament Kenneth Marende seems to be getting an increased international profile. Navanethem Pillay, UN Commissioner for Human Rights, called on Marende on Monday, expressing concern regarding progress on prosecution of suspects for post election violence. According to the Standard she singled out Marende for praise, “saying he had made immense contribution in stabilising the country through some historic rulings and the manner he handled issues in Parliament”.

U.S. Vice President Biden will call on Marende Tuesday as well, along with his meeting with President Kibaki and Prime Minister Odinga.

Interestingly, Marende says that Parliament “would easily pass” legislation to provide for a “local tribunal” to try election violence cases under Kenyan criminal law “if the ICC acted swiftly by taking away key perpetrators of the violence”.

Biden will leave Thursday morning, the day of the South Mugirango by-election to fill the seat vacated by a successful election petition against Omingo Magara, originally of ODM. As it stands the race is hot, with Raila Odinga campaigning for the substitute ODM nominee, Ibrahim Ochoi, William Ruto campaigning for Magara running as a PDP nominee and heavyweights in PNU affiliates split among Magara and other candidates.

 

Should there be an international Code of Conduct for Exit Polls and Parallel Vote Tabulations?

[As the year winds down and things crank up in Kenya’s 2022 presidential campaign and BBI referendum I am going through some of my old unpublished drafts – this is an idea that could matter that the parties involved do not have an incentive to bring forward.]

To me, the answer to the headline question is clearly “yes”.

Very specifically to my experience as in Kenya in 2007 as International Republican Institute Resident East Africa Director, I was able to explain to the USAID Kenya Mission that we at IRI were bound as a party to a published International Code of Conduct in conducting an International Election Observation that required us to maintain independence from the Ambassador.

(Readers may recall that then-Ambassador Ranneberger had pushed for a USAID-funded IRI Election Observation Mission for Kenya’s 2007 election which USAID had decided not to conduct in their ordinary planning process for the election and that IRI did not seek to undertake.)

We on the IRI staff were able to push back on Ambassador Ranneberger’s desire to select Election Observation Mission delegates, although we ended up informally going along with Ranneberger’s choice of Connie Newman and Chester Crocker as lead delegates (Crocker was not available to travel on the dates required).

The rest of the delegates were our choices rather than the Ambassador’s and we resisted Ranneberger’s expressed desire to remove his predecessor Amb. Mark Bellamy from the Observation until Ranneberger “laid down a marker” as he put it.

Likewise, we invited against Ranneberger’s wishes Bellamy’s predecessor as Ambassador to Kenya, Johnnie Carson, who was then the Africa lead at the Office of the Director of National Intelligence and later Assistant Secretary of State under Obama (Carson was not cleared to participate–I was privately relieved for two reasons: it got me off the hook on a potential conflict with Ranneberger and while Carson seemed like a real asset for the Observation I thought the optics of having a high ranking Executive Branch employee and particularly one directly in an Intelligence Community job would not be great from an independence standpoint. In hindsight it might have done some real good to have him there.).

Unfortunately, on the now perhaps infamous Exit Poll, I was more or less naked in dealing with USAID and the Ambassador. The polling program was under a separate Cooperative Agreement between the CEPPS (IRI, NDI and IFES) and USAID which had started with the Exit Poll for the 2005 Constitutional Referendum. (The defeat of the proposed “Wako Draft” Constitution gave rise to the Orange Democratic Party which led Kenya’s opposition in the 2007, 2013 and 2017 elections, culminating in the March 2018 “handshake” and the present “Building Bridges Initiative” referendum campaign).

The 2005-07 polling program was scheduled to end with a public opinion survey in September 2007, well ahead of the general election, the date of which was not set until weeks later. USAID amended the Agreement to add the general election Exit Poll at the end. It was only after I initially reported a few days before the election that we were going to have to cancel the Exit Poll due to the objection of Electoral Commission of Kenya Chairman Samuel Kivuitu that I was told by USAID that the Exit Poll as a higher priority for the Ambassador than the Election Observation itself. Kivuitu’s acquiescence was achieved.

On the late afternoon of Election Day as I was dragging my feet on releasing preliminary numbers before the polls closed I was told that “the whole reason” for doing the Exit Poll was for “early intelligence” for the Ambassador and USAID went to our subcontracted polling firm to get the figures. [Remember that I covered all this in complaints to the Inspectors General at USAID and State.]

IRI had no established backstop to protect itself from interference on the Exit Poll because unlike on the Election Observation Mission there was no published Code or Agreement that I could use to push back to preserve our independence.

We had agreed internally at IRI that we should not report any Exit Poll numbers externally including to USAID or the Embassy until the polls closed, and it was quite clear that we had no contractual obligation to make a report during the vote. But given that USAID was willing to go underneath us to the pollster it was out of our hands literally and there were no clear standards beyond that.

The US Government ultimately had rights to our data as a matter of government contracts law and USAID had arguably and ambiguously constrained our ability to release the Exit Poll results to the public in the Amendment to the Cooperative Agreement funding the Exit Poll by providing for “consultation” with the Embassy on “diplomatic or other” considerations. The Cooperative Agreement for the Program was neither classified nor available publicly until I had it released under the Freedom of Information Act years later. The Exit Poll from the 2005 Referendum had been released.

Fortunately we have not seen another disaster quite like Kenya 2007-08, but the questions about transparency and release and reporting of information from election verification and anti-fraud tools are still there. For instance in the most recent elections in the DRC and Malawi, as well as the controversy in Kenya in 2013. This could be addressed by pre-established standards or codes if donors, host governments and democracy assistance organizations or implementers are willing to give up some of their case-by-case flexibility and frankly some of the power of controlling information.

Kenya USAID IRI poll release press conference
Kenya USAID IRI poll release press conference

Kenya’s revised “Building Bridges Initiative” report published—clock ticking on Referendum preparation

Read the Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report. (Forewarning: it is over 200 pages).

As U.S. Mission in Kenya passes from Godec to McCarter, Africa Confidential explains how Kenyan politics is still “frozen” in 2005-07 “time warp”

Africa Confidential ‘s free January Kenya article is a must read for anyone in Washington charged with engagement on Kenya over the next three years.

“Three’s a crowd”

Kenya’s political landscape in 2019 will be dominated by two-way competition between Deputy President William Ruto of the ruling Jubilee Party and former Prime Minister Raila Odinga of the Orange Democratic Movement (ODM), as each man positions himself for the presidential election of 2022. Each will be trying to cobble together a winning coalition by buttressing his ethnic stronghold and winning over the ‘swing’ votes in regions such as Maasailand, Kisii, Luhyaland and the Coast.

President Uhuru Kenyatta‘s mantra is that the time for party politics is over and that all leaders should concentrate on economic development, based on his signature ‘Big Four Agenda’ (food security, affordable housing, manufacturing, and affordable healthcare), and reconciliation, based on the ‘Building Bridges Initiative’ agreed between him and Odinga last March. He will continue to state this line, arguing that he wants a legacy of an ethnically united Kenya, and will continue to reach out to former opposition leader Odinga and his Luo people.

Both Odinga and Ruto will on the surface claim they support the Big Four and Building Bridges even as they continue their individual campaigns and trade acerbic barbs. Many Kenyan pundits say the only person who has not grasped the new reality is Kenyatta, as he continues to insist on a politics-free country until 2022. . . .

Relatedly a friend got me a copy from Kenya of John Onyando’s recently published “Kenya: The Failed Quest for Electoral Justice” which I am reading with great interest. (Hoping this will be published internationally soon.) Most significantly so far I finally have an insider’s account of one of the key mysteries from the current, post-2002 era in Kenyan politics: what happened to cause the dropping of the Prime Ministry in the final maneuvering for the 2010 Constitutional referendum? Preserving an exceptionally powerful unitary executive Presidency was the key issue in Kibaki’s dumping of his MOU with Raila, et al, and the defeat of the “Wako Draft” constitution at the 2005 Referendum by what became the “Orange Democratic Movement”. Thus it was a bit of a shock to see Raila and ODM leading the “Yes” campaign along with Kibaki in 2010 for a new draft constitution where even the weak Prime Minister position that Odinga then held was completely excised.

[Here is my blog post from March 13, 2010 showing what I knew about the jockeying at the time: the ODM side wanted to go forward with Parliamentary approval of the draft as it was, while PNU (and Ruto) wanted to retreat to Naivasha to consider “amendments” with “retired President” Moi saying he would oppose the referendum without amendment. Ultimately the Naivasha retreat happened and the private vote Onyando’s book describes was facilitated.]

Any explanation of why the Prime Ministry “went away,” as it was put, was one of the more conspicuous gaps in Raila’s autobiography “The Flame of Freedom“.

On paper the 2010 Constitution as passed at the referendum in July of that year does have a variety of intricate mechanisms of reductions of individual power for His Excellency the President at the national government level, but since they are not self-executing and there is no Prime Minister or other potentially independent power center, once the 2013 election was decided for the Uhuruto ticket, Kenyatta has as one would expect largely worked around them, if not explicitly eviserated them legislatively using his control of Parliament.

According to Onyando, by the time of the final politicians’ cut on the 2010 draft constitution arising from the February 2008 National Accord to settle the Post Election Violence, the Opposition/ODM/Raila side had already lost Ruto to Kibaki/Kenyatta to the point that the President’s side gained three votes aligned with Ruto among those allocated to the Opposition among the group. Thus the Kibaki/Kenyatta side was able to write out any direct sharing of executive power under the new dispensation to follow the Government of National Unity. Raila went along on the basis that there was enough reform with partial devolution to 47 new counties and other provisions to warrant a “yes” versus a “no”.

It is noteworthy that even Africa Confidential is offering their current 2019 assessment without reference to specific terms of the Uhuru-Raila “handshake” of March 2018. I am not comfortable doing any real handicapping of the 2022 race myself or saying too much about current Kenya politics without being privy to the actual details of the deal.

Along these lines, this week saw on Wednesday both the first anniversary of Raila’s mock swearing in at Uhuru Park and the tenth anniversary of publication of the New York Times piece, “A Chaotic Kenyan Vote and a Secret U.S. Exit Poll“.

Looking back on my personal experience it is notable to me that Ambassador Ranneberger and I contradicted each other on at least three separate points of fact in our respective interviews with The Times on the 2007 Kenyan election controversy (mine with Mike McIntire in the U.S. and his with Jeffrey Gettleman in Kenya) but I did not lose my security clearance, and had it renewed the next year when it came up so I was able to continue my career as an attorney working on U.S. Navy shipbuilding programs. I suspect I might have had some difficulty if it were not recognized that I had in fact been honest. Had I been a Kenyan (or Chinese for example) citizen it would have been unthinkable to hope to “get away” with being truthful in contradiction to a senior public official in this way without expecting to loose my job and likely go to jail or be killed.

All this is to say that my experience with Kenyan politics over these last many years has richened my gratitude for the freedom and security my family and I have experienced as Americans and my wish for the same someday for Kenyans. (In case you are new to the blog, here is my piece from The Elephant that they headlined “The Debacle of 2007: How an Election Was Stolen, and Kenyan Politics Frozen, With U.S. Connivance“).

Updated Feb 7: Autocratic fangs bared in Kenya as unlawful television shutdown finishes first week; police fail to produce unlawfully detained activist

For a good overview:

Kenya’s About-Face: Fear for Democracy as Dissent is Muzzled” by Jina Moore, New York Times, Feb. 4.

Today the police failed to honor an order to produce detained opposition activist/lawyer Miguna Miguna, who has been arrested by police and held in defiance of a previous order granting bail. No charges have been initiated against him by the Office of the Director of Public Prosecution.

The Court ordered the Inspector General of the Police to appear tomorrow morning with Miguna. Raila and other NASA leaders came to Court for Miguna this afternoon.

Miguna is a firebrand “character” on the local scene in recent years who was not in NASA, running for Governor as an independent against ODM/NASA incumbent Evans Kidero and the new Jubilee Governor Sonko, gaining little support as a candidate. Post election he has associated himself with an activist wing of political opposition calling itself the “National Resistance Movement” and pressured for, publicized and participated in Raila’s (peaceful) “people’s president” swearing in ceremony. It would seem that the regime saw him as someone they could visibly and conspicuously “shut up” who did not have a political constituency or independent mass following.

Personally, I have not considered Miguna’s role one that I thought seemed constructive over the years, but he does not deserve to die for that and I am worried for him.

What does it take for people to see that Kenyatta and Ruto just are not the men whom their Western friends and publicists would try to make us believe?

Looking at Kenya over the years it is so easy to become inured to State violence used not in the interest of the nation or the citizens but of political power and self interest of those controlling the ruling party.

537th they came for Miguna Miguna, and I said nothing because I was not Miguna Miguna?

UPDATE: Later Monday, KTN broadcasting was restored and while NTV remained off the public airwaves its signal was restored to cable and DSTV for those subscribers. Citizen and Kikuyu language sister station Inooro were still blocked from broadcasting. The partial restoration came just ahead on a contempt petition following the original order that broadcasts be restored secured by a public interest litigant. Citizen, unlike its rivals, went to Court itself to challenge the ban.

UPDATE:  Miguna, a Kenyan born citizen who fled to Canada as a refugee during the political persecution of the Moi days, was finally taken late at night to Jomo Kenyatta International Airport and bundled onto a plane for Amsterdam and on back to Toronto.  The police having run out of time finally after serial Court orders to produce him took him to the airport instead of the courtroom.  The authorities will have to file affidavits explaining their actions in preparation for contempt hearings.  Miguna asserts that he was physically mistreated aside from the extralegal aspects of his detention and his alleged deportation or expulsion.

Ken Opalo points out in The Standard that Interior Minister Matiangi shouldn’t have overreacted to Raila’s oath of office in first place, since “the people’s president” is not a real office and the ceremony was a political statement not a treasonable offense.  To this I would add that the State Department’s pronouncement from Washington helped fuel rather than diffuse the confrontation, in particular by decrying the ceremony as a “self-inauguration” without noting that the opposition had stepped back from a claim to an actual office (the stated goal of the opposition is take office through new elections later this year).

Challenges to the constitutional role of the Kenyan Courts by the Executive Branch did not start this week

[Update: see new editorial from the New York Times: “Kenya on the brink again.

And Gathara’s World: “Kenya’s Future Increasingly Looks Like Its Past”;

Kenya has basically regressed 50 years in the last 7 months and the 2010 constitution’s promise of a democratic renewal is fast fading. If extinguished, history suggests Kenyans may be in for decades of brutal and kleptocratic rule. It will be a steep price for the country to pay for not learning from its past.

The role of the Courts in Kenya is under most conspicuous assault with the Kenyatta government flouting orders to allow the main private television networks back on the air, and ignoring orders to release a high profile political detainee.

In fact, the decision of the Supreme Court to rule against the incumbent President to annul his re-election was unprecedented and extraordinary. It has never warranted complacency.

That one Supreme Court ruling was not a bona fide moment of “Mission Accomplished” any more than the winning of the “yes” vote backed by the United States in the 2010 referendum to approve the new constitution was “Mission Accomplished” for “the reform agenda” that we talked about back in those first years of this decade.

Kenyans will remember the beginning of the Obama Administration when Ambassador Ranneberger was a born-again reformer after getting caught out selling Kenyans on accepting the ECK’s alleged “results” as announced (and subsequently disowned) by Samuel Kivuitu in December 2007. As I learned through the Freedom of Information Act later, Ranneberger had informed Washington in his pre-election cables that the Kenyan courts at that time were not credible.

See quotes from Ranneberger’s cable of December 24, 2007 from my post “Lessons from the 2007 Elections and the new FOIA cables–part two“:

There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.

(For my summary of the 2007 election, see The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With US Connivance” in The Elephant from June.)

After those December 30, 2007 announced “results” were questioned by other observers and not accepted we withdrew our pre-mature congratulations to Kibaki and shifted to support “power sharing.” We helped support negotiations that “settled” the violence among the pols and created openings for ODM politicians within Kibaki’s second administration, along with providing for the Truth, Justice and Reconciliation Commission and the revival of the stalled constitutional reform promised voters by NARC in 2002.

After that experience of 2007-08, when the absence of credible independent courts was so sorely felt, the court system was a recognized need for the new constitution.

The new constitution eventually passed in the 2010 referendum against a spirited campaign led by William Ruto created a new Supreme Court and spurred new hope for a cleaner, stronger judiciary that could perhaps stand up to the cartels and politicians and maybe even a president.

But the “reform agenda” held our focus for only so long, and I don’t think we converted many unfaithful politicians. I never got the impression we were too enthused about the TJRC process, but one way or the other we certainly seem to have completely forgotten about that part of the 2008 National Accord since the Uhuruto regime came in power and made it clear that nothing is to come of the (expurgated) gathered evidence of the wrongs of recent decades.

From the “reform agenda” days, which corrupt Kenyan politician ever got prosecuted by the Kenyan authorities based on Ranneberger’s dossiers? Which corrupt institutions were liquidated to benefit the public? Impunity has proved untouchable and, thus corruption has only gotten worse. The new innovation is that if you get caught and pushed out of the Executive Branch you might get lucky enough to be sponsored in a governor’s race. The dossiers pile up and up.

Meanwhile, the notion of an independent judiciary in Kenya is a fledgling work-in-process. Since September 1 signs have been more negative than positive. Starting with the infamous wakora slurs from the President himself against the Judges, culminating with the inability of the Supreme Court to muster a quorum to hear the challenge to the IEBC holding the “fresh election” on October 26 (after the shooting of the Deputy Chief Justice’s driver in her car), there are questions whether September 1 was a “one off” event. Not one the ruling party intends to see metastasize into an inflection point toward reform and away from Kenya’s historical norms under “Kenyatta and Moi’s KANU especially–the “home” of Uhuru Kenyatta and William Ruto together for most of their years.

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.