Daily Nation says Gov’t fed misinformation on bombing: “We are surrounded by liars.”

Mutumu Mathiu, Managing Editor of the Daily Nation, explains the confusion about the facts of the grenade killings in Uhuru Park:

For every inaccurate report in the newspaper, there is a chain of people who have lied and misled the press.

An official I called told me only 24 people had been hurt. Complete disinformation. Our reporter had physically counted 75 patients.
. . . .
Finally, officials speculated that it was a home-made device, made from party crackers. This is what we told Kenyans who read our early editions.

We are surrounded by liars. The government does not hire people to give information to the media. It hires liars to mislead the media.

Update: Good writing on the context of the bombing from Jeffrey Gettleman in the NY Times.

Grenades said to cause 5 deaths at Nairobi “no” rally

The reporting on the tragedy around Sunday’s “No” rally against the new constitution in Uhuru Park has been a bit confused. Earlier BBC said the deaths were caused by a stampede and indicated that it was unclear whether there had really been an explosion or not. The AP report carried in the New York Times and elsewhere indicated an explosion, and now the latest on BBC has PM Odinga saying that the detonation of three grenades had been identified as the cause.

Raila also announced a government investigation. Hard to know to what extent the investigation will be serious, and to what extent there will be public information.

Obviously the referendum is going to be going forward in a tense environment. The latest polls, while still strongly “yes” suggest some erosion of support, and there does seem to be a sense that the issue is tightening up as various interests become clearer and swing into action both in public and behind the scenes.

Skullduggery on the Contitution in Kenya

NARC-K, the party now led by Martha Karua, has issued a public warning about powerful forces scheming to derail reforms under the proposed new constitution. As when she raised the alarm some months ago about bribery in parliament she has not named names. Karua, having fronted for the PNU hardliners in the Annan-led “mediation” following the 2007 elections and served as Kibaki’s first Justice Minister, has been on the inside, has been around quite a while, and is  recognized as a sharp lawyer.

It certainly seems that the announced High Court ruling on the 2004 challenge to the Khadi’s courts is being widely viewed as transparently political in timing.  Likewise the investigation into the insertion of “national security” as a general qualifier of individual rights under the proposed Bill of Rights at the Government Printing Office has not been resourced seriously, has stayed away from people in power and extended in duration, seemingly set up to fade into the distance as such investigations normally do.

Credibility of the voting and counting in the referendum on August 4 may well be at issue, and handling this correctly and transparently will be vital for Kenya’s future. I hope that we in the United States are doing a good job with our support for the IIEC especially.

Waking up to the challenges in Kenya

Yesterday’s big news from Kenya was the ruling by a court panel in a 2004 constitutional challenge to the Khadi’s Courts on grounds of discrimination and the separation of church and state. The 2004 plaintiffs were clergy, some of whom are involved in the current “No” campaign (and others not). The Attorney General has announced he will appeal, which will of course carry the case out beyond the date of the August 4 referendum on the new constitution.

While I am not a Kenyan lawyer, I think that the approval of a new constitution at the referendum would render the current case moot before reaching finality, but in the meantime, the ruling will surely energize the “No” campaign and give greater relative attention to the new draft constitution’s provisions continuing the Khadi’s courts for “family law” and related matters among Muslims on a consensual basis. Surveys have shown that large majorities of Kenyans find the draft constitution a mixed bag, with things they prefer and things they don’t, with the balance weighing in favor of the overall reform. This ruling could have some real impact on that balancing act.

As an American Christian I have been favorably impressed by the general ability of Kenya’s Christian majority and Muslim, traditional and other minorities to get along and live among each other respectfully relative to so much of the rest of the world. As with tribalism, this has the potential to be one more opportunity for politicians with wholly irreligious motives to exploit and divide based on emotions, especially fear.

Certainly the last thing the Kenyans need as they work through this is outsiders who also have other priorities injecting themselves and their money into the campaign.

Meanwhile, back inside the Beltway . . .

Three Republican Congressmen have asked the Inspectors General of USAID and the State Department to investigate the notion that Ambassador to Kenya Michael Ranneberger and others are violating U.S. law prohibiting the use of foreign aid funds to lobby for or against abortion. The theory here is that activities supporting passage of a new Kenyan constitution constitute lobbying for abortion because the final proposed draft, which states that life begins at conception (unlike the current constitution) and makes abortion generally unconstitutional also has potentially ambiguous language that allows some “health of the mother” exception.

In other words, the proposed new Kenyan constitution is much more favorable from a pro-life perspective than the U.S. Constitution as interpreted by the U.S. Supreme Court over the past thirty-plus years.

I remain convinced that Kenyans are wholly qualified to make up their own “hearts and minds” and cast their own votes. If we can avoid confusion and help the process of the vote itself that’s good. We don’t have a great track record, especially in the last election, and in the past in giving too much public and private support for too long to Moi. We should be humble and careful.

Jeffrey Gettleman has a rundown of the American culture wars, East African front, in the NYTimes.

Kenyan Constitution and the Rule of Law

Most people that I have talked to expect the new Kenyan constitution to pass in the upcoming August referendum in spite of opposition from several church groups and politicians. This is also the view of the US-based consultancy STRATFOR in a new report on Kenya. The Synovate poll taken in late April showed a heavy balance in favor of a “Yes” vote, including among those who had disagreements with some specific points in the draft.

Looking ahead, the question may become, how much will the changes in the law really matter?

The Brookings Institution published an interesting study by Daniel Kaufmann  earlier this year criticizing the tendency to focus too much on the de jure rules of law rather than the de facto workings experienced in practice, citing the current situations in Kenya and the U.S. as examples:

First, consider Kenya in 2007. The main aid donors, led by the World Bank and the United Kingdom’s aid agency, DfID, tended to praise the governance reform efforts of the Kenyan authorities, including those on legal initiatives and anti-corruption.[1] Subsequently, in the run-up to the presidential elections, these top donors, also including the United States, flooded the Kenyan government with funds. Kenya’s government was even awarded a special international prize recognizing its good governance efforts.[2]

Elections were held a few short days after the last 2007 World Bank press release in Kenya, which announced approval of funding yet another project for the government.[3] The elections were widely regarded by external organizations, such as the EU, and by many Kenyans[4] as rigged, in what was the culmination of years of systemic political corruption that infiltrated key legal and judicial institutions. Civil strife erupted and the full extent of the breakdown of law and order was exposed at a dire cost—thousands of lives were lost and vast socio-economic damages were inflicted.[5] Yet, the main aid donors appeared to be shocked that such corruption, electoral mismanagement, and turmoil could take place in Kenya.[6]

Around the same time and half the globe away, some rule-of-law institutions were being quietly undermined inside the world’s superpower: the United States. In April 2004, amidst euphoric financial sector growth, a meeting was held in the basement of the Securities and Exchange Commission (SEC).[7] The top executives of the main Wall Street investment banks gathered to weigh in on proposed SEC regulations that would relax restrictions on their investment houses.[8] A scant 55 minutes later, the investment bankers emerged with SEC approval; the new regulations exempted the investment groups from the leverage restrictions that apply to commercial banks, allowing the banks to massively expand their debt.[9]

In return for the green light to an enormous expansion of indebtedness, the investment banks agreed that the SEC would have more oversight over them, for which a special unit would be formed.[10] In practice, the oversight did not take place. In fact, the head of the SEC never created or staffed any such oversight unit.[11] The resulting financial debacle that followed is now well known. What is insufficiently appreciated is the fact that various manifestations of “soft” and “hard” forms of regulatory and legal capture by the elite financials were a factor leading to the crisis.[12]

There are many salutary features in the draft constitution, on paper, but the real question will be making them work in practice. Rule of law will crucially depend on reform of the police, consistently rated as among Kenya’s most corrupt institutions, as well as better access and more effectiveness in the court system.

The outstanding issue of prosecutions for post-election violence is a good immediate test. ICC prosecutor Luis Moreno-Ocampo is in Kenya now, and is said to have informed the government that he will seek to bring two cases against three key individuals each, in the Hague in the September-October timeframe. The government continues to pledge cooperation, but continues not to take specific steps to effectuate the law passed by Parliament to provide for witness protection.

Kenyan Draft Constitution to be published by AG Thursday for referendum

Read it for yourself here.

My take is that Kenyan voters can make their own choice. That’s what this is supposed to be about. Personally I think the process could have been better and the draft could have been better–and avoided unnecessary ambiguity and controversy–but that does not mean, to me, that it does not contain some very important improvements in the governance and political process for Kenya. Regardless, a fair vote in which everyone has the opportunity to vote, and have that vote accurately counted, is the first and indispensable step toward healing from the 2008 violence and moving toward a restoration of bona fide democracy.

American Center for Law and Justice opens Nairobi branch–campaigning against draft Constitution

Kevin J. Kelley reports in the Sunday Nation that Jay Sekulow of the American Center for Law and Justice–typically thought of as a “Christian Right” group, based in Washington and said to be founded by Pat Robertson–has said that “tens of thousands of dollars” are being spent through a new Nairobi affiliate organization, the East Africa Centre for Law and Justice, to oppose the proposed new constitution on the basis that it allegedly would allow “abortion on demand”.

The ACLJ is known primarily for legal work to defend Christian-related groups on religious liberty issues but according to its website also has an official position on abortion: “The ACLJ is committed to the sanctity of life and opposes abortion in all circumstances”.

Robertson’s 700 Club has early morning airtime on the Kenya Broadcasting Corporation. Kelley notes Robertson’s recent commentary on an alleged Haitian pre-independence “pact with the Devil” in relation to the January earthquake. I will say that nothing that I saw on the websites of the ACLJ (www.aclj.org) or the EACLJ (www.eaclj.org) mentions Robertson.

As for background of how the EACLJ came to be established, the ALCJ’s head of global outreach, Jordan Sekulow (Jay’s son) wrote last December 26 that he was flying to Paris to meet his mother and that the two of them would then travel to do work in support of offices in Zimbabwe and Kenya. In regard to Kenya he says that “a good friend and pastor from Iowa, whom I met during the Iowa caucuses introduced me to a well-known Bishop from Kenya who was interested in opening an operation similar to ACLJ-USA in Kenya . . . The Bishop and his fellow pastors have decided to speak out against the constitutionalization of the Sharia Courts and have called on the ACLJ to travel to Kenya and set up a full-time legal and government affairs operation where we’ll work with church leaders on this crucial issue.”

Draft Constitution going to Referendum without amendments

Not surprisingly, Parliament reached agreement on and passed none of the proposed amendments to the draft constitution during the days provided by the authorizing legislation, so the current draft will go to a vote as is. It would seem that many members are significantly disappointed in some or many respects in the details of the document.

How hard will the various major players and prospective presidential candidates work to support passage? Which will work against it–publicly or privately?

Will the voter registration be comprehensive and credible? Will the votes be counted fairly? What will be the involvement of donors in the campaign?

Kenyan Politics

In the final days of review, Kenyan MPs remain divided as to amendments to the current draft constitution. “MPs list their wishes as debate rages”.

Remembering: Exhibit of photographs of Kenyan post-election violence shown at Eldoret (sponsored by USAID and UNDP)

The Vice Chair of the Truth, Justice and Reconciliation Commission has stepped down from her position, after calling for the Chairman, Bethuel Kiplagat to resign. She will continue as a Commission member.

The Indian Ocean Newsletter reports that Kenya’s Blue Shield Insurance Company, owned by the Kenyatta family, is subject to a demand by the Association on Insurance Brokers of Kenya to the Insurance Regulatory Authority (IRA) to appoint a liquidator due to its failure to pay claims. “The IRA position is clearly very delicate in this affair, since this body depends on the ministry of finance, headed by [Uhuru] Kenyatta, who is the half brother of the late Muigai Kenyatta whose widow Beth Muigai chairs the board of Blue Shield Insurance.”