Raila owes me for keeping the vote count verification Exit Poll showing him leading in 2007 from “going away”, but I did not do it for him personally

Over the years carrying my torch as a witness to what happened on my watch in democracy assistance in Kenya in 2007-08, I have always tried to be mindful of the notion that it has not been my business who Kenyan voters chose, including how they voted in the subsequent 2013, 2017 and 2022 elections in which Raila has continued to be a leading candidate. Rather, my job in 2007-08, and my purpose since, has been to address the facts honestly and support the democratic process so that the choices actually made by Kenyan voters themselves would be honored.

Thus, keeping the 2007 Exit Poll from meeting an untimely demise because it was diplomatically inconvenient was not a matter of “supporting” Raila versus Kibaki as a candidate or politician, but rather doing my job to support the democratic process and “observe” the election with integrity.

There was a little bit more involved in preserving the hope that the Exit Poll would be released and published during the early months of 2008 when I was finishing out my “public service leave” as International Republican Institute Resident Director for East Africa than I have written about over the years.  It is probably time to tell the story.

In summary, after the decision was made in Washington to my surprise and disappointment not to release the Exit Poll showing Raila winning by almost six points, there was still the notion that the original polling forms would be sent to Washington and the original data evaluated and re-entered in digital form to determine whether there were actual doubts or anomalies to justify the announcement that the poll was “invalid”. Initially, this was going to happen when staff from our Nairobi office traveled to Washington in March for IRI’s annual global meeting.  The meeting was intended to be mandatory for me as a Country Director and I was asked on behalf of IRI’s President to prepare a presentation on the process of dealing with the Exit Poll and the release decision.  I explained to my boss, the Africa Director, that this was a terrible idea since I emphatically objected to the decision to say the poll was “invalid” and not release it, but I did not want to get up in front of a bunch of young idealistic IRI employees working around the world and say that, nor surely did “the front office” want me to. I also had a major family conflict for the meeting which had been moved because someone in Washington had forgotten to make hotel reservations.  Since my leave from my job in the States was up June 1 and I had to move back in May anyway, I was comfortable declining and was able to beg off.

The original survey forms, which were in locked storage at the Country Director residence near our office, were going to be delivered to Washington by the other staff members making the trip.  But then those instructions were cancelled and there was no operative plan to re-enter the data or otherwise review the original forms in Washington or elsewhere.  The researchers from the University of California San Diego (UCSD) who were the critical consultants for the USAID-funded poll and had contributed additional funding supplementing that provided by USAID, wanted to do the work, but IRI Washington did not want to let them without modifying their contract.  IRI would pay  $10,000 as compensation for the additional work, the same sum as the funding Dr. Clark Gibson of UCSD had provided pre-election, but UCSD would have to surrender the right to publish the results after a six month exclusive period for IRI that was provided in the original pre-election contract.  Dr. Gibson, as he told the New York Times declined because he thought “they were trying to shut me up”.

Given the fact that there was no path forward to complete the polling program and answer the questions that had been raised back in Washington without reference to the original data, I had to make a choice as Chief of Party for the polling program between honoring the existing contract with Dr. Gibson of UCSD or breaching it to follow instructions from my IRI superiors.  I elected to honor the program and the contract (and the election process itself as I saw it) and allowed the UCSD graduate student researcher to take possession of the survey forms (I had sent him, along with my wife, to retrieve them from the polling firm and bring them for safekeeping at the residence once things got “hot” when IRI announced from Washington that the poll was “invalid” and would not be released.  As but one example of what I was concerned about, the possibility of a re-count of the underlying vote in the December 27 election had been eliminated, allegedly, by a fire in the warehouse where the ECK stored the ballot boxes just after the vote.)

Thus UCSD was able to verify the poll and release the results in presentations in Washington at the Center for Strategic and International Studies and Johns Hopkins University in July 2008 after the end of the six month embargo. And USAID reported in their Frontline newletter that the exit poll suggested that the wrong winner had been named by the ECK.

The personal drama was that in April when I was working from the residence (my successor was in place running the office by then but had not yet been approved by USAID as Chief of Party so I was still needed for public meetings and reports and such) when I got a call from my Africa Director in Washington that my successor had not been able to find the survey forms in the office.  I explained that they had never been taken to the office, which seemed obviously less secure, so we had taken them to the residence.  That was a satisfactory answer and nothing further was said.  The fact that the forms were in San Diego at that moment was a “didn’t ask, didn’t tell).

In May I was to turn over the residence to my successor.  The UCSD researcher was bringing the survey forms back from San Diego with him and put the boxes in checked baggage which was tied up in a big delay at Heathrow in London, so he arrived without them as I was getting ready to vacate the residence.  In the context of the tension between myself and the Ambassador and the non-release of the Exit Poll, I threw myself my own going away party with my family and the staff that reported to me, but I did get invited to a farewell dinner by the Serbian Ambassador and his wife who managed the office for both the East Africa programs and Sudan. Starting out with a homemade Serbian aperitif I felt a bit woozy after a sip and excused myself. I woke up a few minutes later on the floor of the restroom with a bit of blood on my forehead from striking the sink on the way down.

A cab was called to take me to Aga Khan hospital where I recovered for a few days while my wife and kids scrambled to finish getting everything out of the residence for turnover in my absence and I hoped that the boxes of survey forms would arrive in time to be back in the residence for my successor.  After a few anxious days the boxes arrived in the nick of time and I was soon out of the hospital and off with the family for a couple of weeks in Uganda before going back to Mississippi and my job as a lawyer in the defense industry. Testing at the hospital indicated that I did not have malaria, just some similar but completely temporary symptoms of who-knows-what.

At some point, IRI ended up hiring a survey firm in Oklahoma to review the Exit Poll and released it themselves in August 2008 just before the UCSD researchers testified about it to the Kreigler Commission which was conceptually charged with investigating the dispute as to the facts of the vote for president.  Raila wrote about how important the Exit Poll was to him in his autobiography, “The Flame of Freedom”.  He got part of the story wrong, but since he has continued to be a candidate for president over the succeeding elections, it has been in his interest not to be overly fastidious about all the details, just as the important thing for current democracy assistance efforts is keep learning and adapting from the lessons that become available.

If Raila ends up being president this time, I hope he does a great job in the spirit that his most loyal friends and supporters, some of whom are also my friends, have always expected.  I also hope it is because he gets the most votes in a free and fair election that is not marred by violence or more corruption than we have already seen.

Good pre-election Kenya report from Carnegie Endowment

Saskia Brechenmacher and Nanjira Sambuli have released an excellent pre-election report for the Carnegie Endowment’s Pivotal Elections in Africa series produced jointly by Carnegie’s Democracy, Conflict, and Governance Program and Africa Program.

Moreover, as other analysts have noted, a recurring pattern of dealmaking between political insiders also serves to protect the economic and political power of a narrow elite class, while undermining more meaningful forms of political accountability. Politicians have incentives to mobilize voters to secure their place in elite bargains; yet once those bargains are struck, the needs of communities tend to fall by the wayside at the expense of elite interests. This pattern helps explain why inequality in the country has spiraled: according to Oxfam, “the number of super-rich in Kenya is one of the fastest growing in the world,” with “less than 0.1 [percent] of the population . . . own[ing] more wealth than the bottom 99.9 [percent].”

“The Specter of Politics as Usual in Kenya”

Why I have not violated the confidences of Kenyan officials and politicians who told me directly and indirectly what they were up to in 2007-08

Kenya Rift Valley Rural Women Empowerment Network

As the International Republican Institute Country Director in 2007-2008, I was an “insider” of sorts in the disastrous Kenyan election in December and its aftermath because I was a privileged outsider by virtue of my job.  A middle class lawyer such as myself who was a Kenyan could have only hoped at best to have some real access to one side or the other. I was both bound by a written IRI code of conduct and my own ethics to protect the private conversations I had with politicians in the context of their seeking the benefits of our democracy assistance programing or otherwise communicating to me because of that role that I was in.

Since I have practiced law as my career except for my year of leave to work for IRI in Kenya, you could say that I keep people’s secrets for a living, so I do not find it hard or unusual, whatever the temptations.

Over the years in this blog I have written the stories of a few very important conversations I had in the pre- and post- election environment with leading Kenyan political figures, but I have always been careful to anonymize them so that the point can be shared for learning purposes without calling out the individual.

See, for example: “Vote Buying and Women Candidates in Kenya” and “As it was in 2007, is it now in 2016? “Too much corruption” in Kenya to risk a change is power at elections?”  [The individual with whom we had the conversations reported in these posts is naturally still very much involved this year; I will hope the institutional knowledge within IRI is sufficient that everyone involved there is well informed on this.]

For separate but related reasons, I have also avoided using the names of my fellow IRI employees and employees at USAID and the State Department as best I can.  The reason for that is so that I was not at risk of doing to anyone else what IRI did to me in response to my being interviewed by The New York Times about the failed election and our exit poll program: what you might call a “poisoning by Google”.  This is why I try never to use the names, as opposed to occasionally the titles, of others involved except the Ambassador himself.  Sort of a “turn the other cheek” thing, and also an attempt to do no more harm than necessary to honor the truth.  This has helped me keep as many personal friendships as possible over the years even if the details of the kinds of things I have written about here about what happened with that election in Kenya have always remained completely off limits with my former colleagues and most everyone who was in my government.

 

The long view – 15 years ago I was preparing to move my family to Kenya for six months public service leave to work for IRI

In May 2007 I was getting ready to move and reading up on Kenyan politics and history, and talking to people associated currently or previously with the International Republican Institute who knew something about the practical aspects of living and working in Nairobi, which was not as common a thing for Americans then as now.

At my job as Senior Counsel with the big defense contractor Northrop Grumman I was working to close a “Gulf Opportunity Zone” bond issue for “facilities modernization” at The State (of Mississippi) Shipyard at Pascagoula which was under long term lease to the company with rent tied to bond debt.  We were recovering and improving in the wake of Hurricane Katrina in 2005.  I was also Program Counsel for the Amphibious Assault Carrier program, in which we had a series of contracts for a low “ten figure” sum to build a Navy ship that carried a Marine Expeditionary Unit to wherever they might need to go, with a few helicopters, airplanes and landing vehicles, a hospital and such.

The idea of doing non-profit foreign assistance work was influenced by several things, most especially living through the Hurricane Katrina disaster.  A few weeks before the hurricane hit the Mississippi Gulf Coast I had served as an Election Observer for IRI in Kyrgyzstan, and as the youngest and most expendable delegate I had had a grand adventure in Batken in the Ferghana Valley and found the experience of supporting a peaceful election in a troubled region as a counterpoint to the wars in Afghanistan and Iraq to be inspiring.  Spending some time in an area that was poor and economically regressing also gave me a different perspective on the context of the devastation we soon faced back home from Hurricane Katrina, where in spite of the initial failures we received billions of dollars in assistance.  Even though it was all grossly inefficient, Washington turned on the spigot.  More importantly people from around the country and even around the world came to help “on the ground”, sacrificially, and many of my friends, in particular in my church congregation, did wonders helping those in need while most of my impact involved my work at the shipyard.  All told, I was primed to “do something” intended to be helpful and in particular in the “less rich” world.

It was in this context that I asked for “public service leave” to take the position of Resident Director for East Africa for IRI.  I asked for 18-24 months of unpaid leave, with the expectation that I would have to hope that a spot was available somewhere within the company’s law department after concluding at IRI. I got 6 months of job-protected leave instead, extended at IRI’s request that fall to a full year.

If I had had the background and experience, I might have sought to work in some other area like agriculture.  I had a background in practical party politics which had led to the opportunities to volunteer with IRI.  There was another context for working in democracy assistance specifically though, which was the Iraq war.  I was one of those that had not really been persuaded by the case to invade–it seemed like a “hail mary” so to speak that only made sense in the face of the kind of clear imminent threat that did not seem to be demonstrated.  Likewise, the general “Bush Doctrine” did not seem to me to be consistent with the weight of decisions of war and peace that were required by my Christian values.  By 2005 most Republicans from Washington could admit when they let their hair down overseas that we had made a mistake even if it would be another eleven years before they felt willing to say so publicly in response to Donald Trump’s campaign in the Republican primaries.

At some level, I thought we made the mistake on Iraq because too many of the people who really knew better in Washington in 2002 and 2003–the kind of people who had the experience and regional knowledge that I knew outside of Washington–“went along to go along” rather than exercise their best judgment.

So given my reasons for being in Kenya in the first place, and my own experience watching policy trainwrecks in Washington from the field, I was never going to be the guy to delegate my own responsibilities to do my own job to others, such as the Ambassador, who were not in my chain of command and had different roles to play and different perspectives about the Kenyan election. Nor was I going to willingly personally implicate myself in communicating things that I did not consider to be true when my job as Chief of Party for democracy assistance programs did not countenance “looking and pointing the other way” for extraneous reasons when confronted with election fraud.

I have found some agreement from a range of people in Washington with my observation that “the soft underbelly of American national security is careerism”.  Since I wasn’t in Kenya for IRI because “it was the best job I could get in the Republican Party” or because I wanted to switch careers to try to climb the ladder in U.S. foreign policy in Washington, I did not have the same temptations that others might have had to let myself get steamrolled by the Ambassador or others who did not want to recognize inconvenient facts about the Kenyan election that I had a responsibility to deal with.  Likewise, being an experienced middle aged lawyer used to dealing with government contracts made a great deal of difference, as did being the father of young children whom wanted to be able to explain myself to in years to come.

P.S. In case you have come to this piece fresh without being a previous reader here, the best “witness summary” of my experience and subsequent research is my longread in The Elephant from 2017:  “The Debacle of 2007“, in addition to my Pages with my “War for History” series and my “FOIA Series–Investigating Kenya’s Election“.

Kenya 2007 PEV Make Peace Stop ViolenceA Chaotic Kenya Vote and a Secret US Exit Poll in New York Times

 

 

 

Michael Horton of the Jamestown Foundation joins the advocacy for international recognition of Somaliland

Micheal Horton, a fellow at the Jamestown Foundation, who publishes occasionally at the Quincy Institute’s Responsible Statecraft, has written a piece entitled “How Somaliland is playing its geostrategic cards better than most” including advocacy for international recognition:

. . . .

 

The pressures that Somaliland faces will only increase in the months and years ahead. The ramifications of the possible dissolution of Ethiopia as a cohesive state will reverberate across the Horn of Africa. Somaliland, like other Horn of Africa nations, will be hard pressed to insulate itself from the fallout from the fragmentation of Africa’s second most populous country. Ethiopia’s civil war is also occurring at a time when developing and developed nations alike face rising energy costs and food inflation, as well as ongoing economic disruptions resulting from responses to COVID-19. Such challenges will test every country in the Horn of Africa and beyond.

 

More than ever, Somaliland deserves and needs international recognition for the great strides it has made to establish a democratic and durable government. The United States has an opportunity to solidify its relationship with a nation that has a proven record of adhering to the values and forms of governance that it supports. However, the window on this opportunity is likely to close. At some point in the near future, circumstances and necessity will force Somalilanders to choose a side. Aid from China may prove more convincing than empty rhetoric from Washington.

Following the paper “The U.S. Should Recognize Somaliland” by Joshua Meservey, the Heritage Foundation’s lead Africa analyst published in October, it is clear that there is real movement on the conservative side of the Washington foreign policy establishment for some U.S. initiative on the recognition issue, in spite of the reduced public engagement with Somaliland during the Trump Administration when the D.C. right had some real direct power in the various bureaucracies as well as the White House and top levels at State and Defense.

Personally, I do not disagree with Meservey’s or Horton’s basic arguments (not to say I agree with every detail of what they write or that they address all issues where I see challenges and risks) now that Somaliland has delivered on the long delayed parliamentary election.  I thought the previous “dual track” approach from the early Obama years made sense then and I was surprised not to see more progress since. (See “U.S.-Somaliland relationship continues to mature as U.S. leads donor delegation on preparation for municipal elections” from 2012.) Given that I poked a bit at now-Secretary Buttigieg’s 2008 advocacy (“Quick thoughts on Mayor Pete’s Somaliland vacation and related op-ed” and “Please note that in mid-2008 Hargeisa, Somaliland was safer and less repressive than Addis or Khartoum” ) I want to take note of both the progress in Somaliland and the risks of letting more years drift by on recognition as other changes take place in the region.

Khat Shop Hargiesa

 

To be clear, State Department records show Department did flatly misrepresent the Kenya Exit Poll in 2008 to avoid pressure to release it

From a 2017 release in response to my 2009 Freedom of Information Act request on the Exit Poll showing an Opposition win in Kenya’s 2007 Presidential election:

R 170924Z APR 07
FM AMEMBASSY NAIROBI
TO SECSTATE WASHDC 9024

FOR AF/E AND INR/AA

SUBJECT: ACHIEVING USG GOALS IN KENYA’S ELECTION

12. (U) Ongoing Assistance: USAID/Kenya has ongoing support
in the areas of electoral administration, public opinion
polling and political party strengthening. Program
activities include the following:

. . .

– Public Opinion Polling: The International Republican
Institute began implementing a public opinion program in
2005. The program seeks to achieve two results: increasing
the availability of objective and reliable polling data; and
providing an independent source of verification of electoral
outcomes via exit polls. These results make an important
contribution to elections and political processes. First,
genuine free and fair elections require that citizens make
informed choices. The polling data adds to the objective data
available to citizens on key electoral issues. Second, the
exit polls provide an independent assessment of the accuracy
of the official electoral results, thereby supporting the
assessment of the credibility of Kenyan electoral processes.
This program also enhances democratic political parties by
enhancing the likelihood that candidates base their platforms
on the key issues and concerns of their constituents,
evidenced in the polling data, rather than the traditional
focus on ethnicity and personalized political wrangling.

Read the whole April 2007 Ranneberger cable at the State Department FOIA site.

Yet, after the election, the State Department developed “talking points to deal with press questions if they came” that told a contradictory story, that the exit poll was a “training exercise” rather than an “independent verification of outcomes” and “assessment of credibility of the Kenyan electoral process”:

IRI Exit poll Q&A

Q — Why isn’t the Embassy pressuring to release its exit poll conducted in conjunction with the December general elections?

 

A — As explained on their website, IRI did not conduct the Opinion poll themselves and have real concerns over its validity. Moreover, the poll was conducted as a capacity building or training exercise. We should not Pressure’ firms to bring a product to market that they don’t believe in, whether it is a defective automobile, or a defective opinion poll.

 

Q — Strategic Public Relations ind Research Limited (SPRR), the firm IRI contracted to Conduct the poll, stands by their results and refutes IRI’s statement.
They said they were “shocked and disappointed” at IRI’s decision. What is your reaction to that?

 

A This is a highly technical dispute between private parties over raw data that no one
else has even seen. We understand that IRI is examining the disputed data to see if any of it is usable, which sound’s reasonable under the circumstances.

 

Q — In his recent testimony before Congress and in an editorial that he co-wrote, Maina Kiai, Chairperson of the Kenya National Commission on Human Rights,
urged Congress to pressure IRI to release the exit poll. In the op-ed, he said it was important to release the exit poll because there are “Suspicions that the institute has
suppressed its results not because they were flawed but because they showed that Mr. Odinga won.” These suspicions, he said, have fueled mistrust. What is your
position?

 

A Again, we should not pressure IRI to release information gathered in a training 
exercise, especially when they lack confidence in its validity.

Additional “AF (Africa Bureau) Press Guidance” with the same misrepresentations were issued on July 9, 2008 after the Exit Poll was finally released in Washington by the University of California, San Diego researchers and it was covered in the McClatchy newspapers.

For further discussion, see “Should there by an international Code of Conduct for Exit Polls and Parallel Vote Tabulations?“:

. . . .

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.

 

Ambassador Godec, as Acting Assistant Secretary of State, should articulate U.S. policy for Kenya’s election

Kenya 2013 election IRI Electoral Commission voter education posterAmbassador Robert Godec has served as the Biden Administration’s Acting Assistant Secretary of State since the inauguration.

Ambassador Godec served in Kenya from August 2012, as Chargé d’Affaires following Amb. Scott Gration’s ouster, becoming the Ambassador in January 2013 after November 2012 confirmation hearings ahead of Kenya’s March 2013 election.

Godec thus led U.S. engagement with both the later stages of the 2013 election and the ensuing litigation (both the presidential election petition at the Supreme Court and the on-going attempt to prosecute IEBC technology procurement fraud), the formation of the Jubilee Party in 2016, the eventual replacement of the Issack Hassan-led IEBC following protests in which opposition supporters were killed, the attacks on the USAID-funded International Foundation for Election Systems (IFES) by the Jubilee Party and President Kenyatta and Cabinet members, the change of U.S. Administrations from Obama to Trump, the acquisition of the Kenya Integrated Election Management System (KIEMS) from Safran Morpho (n/k/a Idemia), the abduction and murder of IEBC acting ICT Director Chris Msando on the eve of the 2017 vote, the general election and the successful Supreme Court petition annulling the presidential portion of the vote, the boycotted re-run, the announcement of the “Big 4 Agenda” and the post-election diplomatic negotiations, the “People’s President” swearing in, the “Handshake” and most of first year of the Building Bridges Initiative.

For the status of things in December 2018 as Ambassador Godec’s replacement, Ambassador McCarter was being confirmed see: “Something afoot in Kenya: Nation newspaper is running investigative reporting on IEBC procurement corruption in 2017“.

So at this point, Ambassador Godec is a seasoned veteran of Kenya’s post-2007 politics who knows the ground intimately from the last two election cycles.  (His prospective “permanent” replacement, Mary Catherine Phee, was nominated in April and got a favorable vote by the Senate Foreign Relations Committee this summer, but a confirmation vote by the full Senate is blocked along with dozens of other nominees.)

I was asked a few months ago to write an article about U.S. support for the BBI process, but I have been unable to do so because it is not clear to me what our policy has been or is now, and I have not found people involved willing to talk to me.  Given my role in telling the story of what went wrong in 2007 when I was involved myself it is no surprise that I might not be the one that people in Washington want to open up to now, but even people that I am used to talking to privately have not been as forthcoming as usual.  Nonetheless, Kenyans inevitably have questions, and those Americans who care may in the future.

Members of the Kenyan Diaspora Alliance-USA have announced that they have sent Freedom of Information Requests to USAID and some Kenyans on social media and in a few cases in print have asserted suspicions or accusations that the U.S. Government was intending to back “unconstitutional constitutional amendments” in the form of the BBI referendum for some negative purpose.  Looking at the degree to which the Obama Administration backed the passage of the new 2010 Constitution as the terminal event of the post-2007 “Reform Agenda”–to the point of having millions of dollars bleed over from neutral democracy assistance programing into supporting the “Yes” campaign in the 2010 referendum during Ambassador Ranneberger’s tenure–I am having a bit of difficulty understanding why my representatives in Washington would be working in general terms to undermine the new Constitution we helped midwife in the first place.  At the same time it has openly been our policy under Ambassador Godec originally and then his predecessor Ambassador McCarter to support the Building Bridges Initiative and we did provide some USAID funding for the conducting the consultative process itself.  I think it would be in the interests of the United States and of Kenyans for the State Department to get out front of the questions now, with the BBI referendum effort rejected both at trial court level and on appeal, and with the Kenyan presidential race that has been going on since the Handshake entering into its later stages.

We remain Kenya’s largest donor, we have many relationships and support many assistance programs of all sorts in Kenya.  Most Kenyans remain in need, and we continue to have the same issues regarding terrorism as during the past 25 years (most especially since the 1998 embassy bombing). In general the geographic neighborhood is experiencing more specific crises and some overall erosion of peace, prosperity and governance.  While we may not be as influential in Kenya as we were prior to 2007, and anyone with money can play in Kenyan politics, we will be engaged and we will have influence in 2022.  So there is no time like the present to articulate what our policy is for the coming year.

Here is my take from December 2019: “Important Kenya BBI reads, and my comments“.

And from January 2020: “How will the Trump Administration’s support for the Uhuru-Raila handshake play out in 2020?

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

.

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.

 

Stand by . . .

After eleven years I am taking a real hiatus from writing here for early 2021.

Several reasons:

First, there is so much going on in Kenyan politics relative to my time to really delve in, uncover and keep current—it is all very much familiar and still “frozen” from 2007-08 in many ways, but I risk being simply wrong if I write without adequate depth this many years since I have actually lived in Kenya.

Second, I am tired of having and expressing opinions after the all the overwrought drama of the Trump years and watching all of the continuing open and notorious corruption in Kenya and East Africa more generally.

Third, I have made a career change. I have left the corporate world and am back in private law/consulting practice and have some potential intersection between development issues I might write about here and things that I am not able to about as a matter of professional obligation.

Maybe I’ll send some new FOIA requests in the meantime…

New report that Trump Administration learned of staggering procurement corruption at top of DRC’s Election Commission “a few weeks before” 2018 election, stayed mum

In a must read story of “Africa in DC”, Buzzfeed’s Albert Samaha peels back several layers of the story of how DRC strongman Joseph Kabila managed his 2016-19 election problem with the new Trump Administration: “A Secretive Company Needed to Convince Washington That Congo’s Election Would Be “Free and Fair.” It Found A Friendly Ear Among Trump Allies.

Previous reporting disclosed internal dissent within the State Department, including an early 2019 story from Robbie Graemer and Jeffcoate O’Donnell I noted here: “Foreign Policy article gives insight on disagreements within Trump Administration on backing off on criticism of flawed DRC vote.”

Kabila’s innovation was to turn directly to his Israeli surveillance and security contractors to broker the hiring of lobbyists connected to the Trump Administration, such as Robert Stryk’s Sonoran Policy Group who repped the Kenyatta-Ruto Administration in Washington during its 2017 re-election effort. Kenyatta hired Stryk through the Kenyan foreign ministry rather than through surveillance contractors. One could suggest that the use of outside-the-Beltway intermediaries raised eyebrows and ultimately loosened tongues.

Update: Here is a link to the U.S. Foreign Agent Registration Act filing of Mer Security and Communications, Ltd of Halon, Israel for the Government of the DRC for the 2018 election. And the filing of Stryk’s Sonoran Policy Group for their subcontracted portion, including lobbying the National Security Council, and hosting “the Cobalt Reception”. (Further on Sonoran Group, see “Trump-linked lobbyist turns from Gulf Arabs to more toxic clients,” al-Monitor, Feb. 19, 2020.)

You owe it to yourself to read Samaha’s whole story, but the thing that is most profoundly disappointing to me is the report that my government learned about massive corruption at the CENI in time to say something before the vote but elected not to.

This casts new color to the internal debate within the U.S. government over what to say and do, and what to disclose, when CENI subsequently announced “results” that lacked credibility.

The excuse for not speaking to government-sponsored election fraud is supposedly the fear of instability from aggrieved voters faced with intransigent incumbents—a real concern—but how can we claim to be serious about democracy support when we chose to keep quite on obviously debilitating fraud before the vote? A key question for me about the Kenyan election disaster in 2007 has always been how much we knew about Kibaki’s intentions before the election, having documented through FOIA that Ambassador Ranneberger personally witnessed the wrongful changing of tallies at the Kenyan IEBC but still encouraged Kenyans to accept the vote without disclosure.

Update: Assistant Secretary of State Tibor Nagy appears to have effectively announced the “climb down” by the State Department on supporting Tshisekedi as the de facto president at a CSIS dinner in Washington on January 30, 2019, while still asserting “In addition, we will continue to voice our disapproval of the poor implementation of a flawed electoral process, which was far below the standards of a fully democratic process. We will hold accountable those most responsible for undermining D.R.C.’s democratic processes and institutions.” Nagy celebrated a peaceful transition of power “that few thought possible”. “Ultimately, the Congolese people have the final word. After President Kabila left office, there have been no meaningful protests to the election outcome. Felix Tshisekedi has vowed to unite the country, reform the security forces and justice sector, fight corruption, and spur greater U.S. investment and it is in our interest to help him succeed.”

On March 21, 2019 the Treasury Department announced personal sanctions against the two top officials of CENI:

Under Nangaa’s leadership, CENI officials inflated by as much as $100 million the costs for the electronic voting machine contract with the intent to use surplus funds for personal enrichment, bribes, and campaign costs to fund the election campaign of Kabila’s candidate. Nangaa, with other CENI officials, awarded an election-related contract and doubled the award amount on the understanding that the winning company would award the extra funds to a DRC company controlled by CENI leadership. Nangaa approved the withdrawal of CENI operation funds for non-authorized budget items for personal use by DRC government employees. Nangaa ordered CENI employees to fabricate expense receipts to cover spending gaps resulting from CENI funds being used for personal gain. Nangaa delivered bribes to Constitutional Court justices to uphold a decision by the CENI to delay DRC’s 2016 elections.

Consider in light of the ultimately similar context from Kabila’s alleged 2011 “re-election” during Secretary Clinton’s State Department tenure as I warned about in a post here on August 8, 2018: “With DRC’s Kabila Backing a Substitute Candidate This Year, Time to Review the International Observation Experience from 2011 Vote”:

At the time of the last election in 2011, Africa democratizers were buoyed by an understood success story in Ghana, the hope of an “Arab Spring”, the lull of violence in Iraq and more generally encouraging environment. As explained in my posts from that time, the U.S.- funded International Observation Mission (conducted by the Carter Center) found the election to fall short of adequacy by the applicable international standards and said so explicitly.

Initially standing up to Kabila over the failures of his alleged re-election and pushing for them to be addressed appeared to be U.S. policy. If so, we apparently changed our mind for some reason. Tolerating a bad election then leaves us in a more difficult position with seven years of water under that bridge. The U.S. has stepped up recently to pressure Kabila to schedule the election, allow opposition and stand down himself.

In this vein, we need to be careful, and transparent, as things proceed to continue to evaluate realistically what is feasible and where we are really able and willing to assist.  In particular, the decision to initiate and fund one or more Election Observation Missions for a vote in these circumstances should involve serious soul-searching at the State Department (and/or USAID).

On the last election:

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

Carter Center calls it as they see it in DRC

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

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