FREE, FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant

Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.

Kenya’s presidential election petition – it was clear IEBC did not follow the law, even before Supreme Court Registrar showed serious skulldugery with ICT

Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):

Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.

It is simply not the same thing at all in my opinion.

Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.

Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)

I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.

People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.

Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”

“Preliminary Findings” released by Kenyan civil society coalition on election

Update 23 Aug – Here is the latest from the  Kura Yangu Sauti Yangu monitoring:    KYSYElectionDataUpdate-WhyDisputed-22Aug2017

Following the unlawful raid on AfriCOG in Nairobi yesterday, today the Kura Yangu Sauti Yangu election monitoring program which has been engaged since long before any of the International Election Observation Missions were constituted, released its Preliminary Findings.

Please read for yourself (especially if you have commented publicly so far on Kenya’s election).

It would be easier for Mr. Chebukati and Mr. Kerry to make their case to Mr. Odinga’s supporters with much greater transparency

There is a lot that Kenyan voters could be told that they have not been told about how their votes were represented to them by the IEBC over the last several days since they voted and all the ballots were counted Tuesday evening.  As assurances given to the voters in 2007 and again in 2013 in the immediate aftermath of voting those years did not in some substantial respects turn out to be factually sustainable, it is no suprise many Kenyans would want to verify rather than just trust now.

One would expect everyone involved this year to anticipate questions.  There were lots of prominently published warnings of the need for transparency (from the International Crisis Group among others).

Mr. Kerry was Secretary of State in 2013 and presumably has current clearances that would allow him as an individual, now post-government service, to make doublely sure he is fully briefed about the failed Results Transmission System of 2013, as well as other past problems, if he wasn’t before coming to Nairobi last weekend for the Carter Center.  Presumably he could also ask the current US and Kenyan governments to go through the details relating to procurement and use of KIEMS this year.  Then he could answer questions and demonstrate the kind of transparency that would build trust.

Alternatively Mr. Chebukati and the current U.S. government could answer questions irrespective of the Carter Center or other independent Election Obsevation Missions.

Kenyan election – amid uncertainty, unfortunate there was no Kalonzo v. Ruto debate [updated 7 Aug]

Today [Sunday 6 Aug.] the IEBC announced for the first time that over 25% of its more than 40,000 polling stations do not have network coverage.  Satellite phones have only been provided, apparently, to the 290 constituency tally centres.

So with a very messy voter register again–see AfriCOG report here–the election is entirely dependent on the KIEMS system.   The procurement of the system remains deliberately shrouded, the techical director murdered–with offers of assistance from the FBI and Scotland Yard spurned.  And now the connectivity bombshell.

Along with the deployment by the Kenyatta administration of twice the security personnell as Kibaki deployed in 2013 in the wake of 2007.

So no need to pretend that this is a normal election in which voters could have standard expectations.  Still, the contrast between the coalitions and the generational consequences at issue might have been best captured by a debate between Kalonzo and Ruto.

Update Monday 7 Aug: seemingly keen to signal that there has been no end to the use of the assets of the Government of Kenya for the Uhuruto re-election campaign, the official website of the Office of the Presidency today features this piece dated Saturday to  correspond with the end of the campaign:  “President Kenyatta: I served Kenya diligently–vote for me again“.  Last year Kenyatta and Ruto launched the Jubilee Party as their re-election vehicle at State House in a telling contrast from Kibaki’s 2007 launch of his PNU re-election vehicle at his private Silver Spring Hotel in Nairobi.

The unwillingness or inability of Kenya’s other institutions, including the media, to stand up to the “re-KANUization” of the State by the Executive’s Party is one of the most troubling indicators of the deteriorization of democratic health from the seeming breakthough of the 2003-05 with the NARC coalition defeat of KANU.

Update: here is a VOA overview.

“THE DEBACLE OF 2007” – my piece in The Elephant on how Kenya’s politics was frozen and an election stolen . . .

THE DEBACLE OF 2007: How Kenyan Politics Was Frozen and an Election Stolen with US Connivance | The Elephant

Mocking democracy: Government of Kenya announces “Kenyan Asian community backs President Kenyatta’s re-election”

Democracy Assistance

“URAIA Because Kenyans Have Rights”  — Democracy Assistance facade?


[Update: The Daily Nation, State Officials on the campaign trail“:  “The Jubilee administration has deployed civil servants and key government officials on vote hunting missions across the country in contravention of the law.”]

Let it not be said that there is any serious pretense that the Government of Kenya is neutral in the contest for political allegiance of potential “swing” ethnic groupings, rich in votes or money, in the current election, a contest for power between the Uhuruto ticket representing the current generation of the original KANU establishment led by the Kenyatta family and an opposition coalition led by Raila Odinga and Kalonzo Musyoka.

Here is the “latest news” from the Government of Kenya, Office of the President (www.president.go.ke): “Kenyan Asian community backs President Kenyatta’s re-election”.

This years’ “Jubilee Party” was literally formed at State House as the Uhuruto re-election vehicle, formally merging Uhuru Kenyatta’s TNA and Ruto’s URP, just as this meeting of State Officials and “Asian” Kenyan businesspeople and politicians for the re-election campaign was convened at State House.

Conduct of this sort, aside from being a clear form of corruption per se as a misappropriation of public resources for private gain, is explicitly against the mandatory Code of Conduct for the Kenyan political parties.  (On paper the campaign, in full swing for months, is not even to start until May 28.)

Will the Registrar of Political Parties and the Independent Electoral and Boundaries Commission take action?  The IFES led consortium of US based organizations both facilitating and underwriting the cost of the election, while also coordinating its “observation” at the expense of American (and in parts Canadian) taxpayers?  What about ELOG, the donor supported Kenyan observation group?

IFES has already beeen attacked by the Kenyan Government and ELOG is charged with continuing to do business in Nairobi on a permanent basis, so it would be a huge act of institutional courage for it to seriously challenge the conduct of the Office of the Presidency.  We have been in the mode of continuous institutionalized democracy promotion in Kenya for 15 years (!) now.  No matter how many  capacity building seminars we hold for the little people in the cities or the politicians in the resorts in the Rift Valley or at the beaches, if we let ourselves simply be mocked and pretend that this is working we will surely risk moral injury to our own democracy.

Read the whole campaign piece here:

The Asian community in Kenya has endorsed the re-election of President Uhuru Kenyatta.

Leaders of the community said they have taken the decision to rally behind the President because of his commitment to creating an enabling environment of business and development.

The leaders, who visited President Kenyatta at State House, Nairobi, said policies implemented by the Jubilee Government have enabled more business to thrive and made Kenya a preferred destination for investors.

At the meeting which was also attended by Deputy President William Ruto, representatives of the community assured the President that they would rally behind him to ensure the country’s development tempo is sustained.

“What we have seen in the last four years needs no magnification and my words can be supported by facts that can be seen and quantified, “said businessman Iqbal Rashid.

The businessman cited the upgrading of the old railway system with the Standard Gauge Railway, the upgrading of the Jomo Kenyatta International Airport and continuous improvement of the infrastructure connecting cities and towns.

He said the continued flow of investments into Kenya from all corners of the globe was as a result of the confidence in the leadership of President Kenyatta.

Women leaders Parveen Adam, Shamsha Fadhil and Farah Mannzoor thanked the President for championing an agenda that fosters inclusiveness as well as the prosperity and unity of all Kenyans.

They said women appreciate his efforts to spearhead the campaign to have the two third gender rule passed by the National Assembly.

Businessman Bismiahirahman Nirrahim said the Asian community has witnessed the transformative leadership of President Kenyatta which has helped in creating conducive environment for investments.

He cited the increased ease of doing business resulting from President Kenyatta’s policies including the policy to reduce the time it takes to register a new business.

Nirrahim said the youth and women empowerment program implemented by President Kenyatta’s Administration has also been a transformational policy that deserves praise.

President Kenyatta thanked the leaders for their support and assured them that he would continue working tirelessly to make Kenya a more prosperous country with shared prosperity.

He said the Asian community has been keen in developing Kenya saying the community has always been in the forefront championing the interests of the nation since the days of independence struggle.

“Like all of us you were part and parcel of the Kenyan struggle for Independence, the role you played cannot be ignored,” said President Kenyatta.

The President said he is a believer in an inclusive society adding that he would want to see the Asian community participate more in both social and economic development of the country.

“This is the government that believes in encouraging partnership and working together. Your success is our success,” said President Kenyatta.

Also present were the Chief of Staff and Head of Public Service Joseph Kinyua among other senior government officials.

Author

Gok

Update May 26:  See “Asian Kenyans seek to be declared a ‘tribe’ of their own” in today’s New York Times.

Why does the House Foreign Affairs Africa Subcommittee keep leaving the Carter Center off their election hearings?

The U.S. House of Representatives Committee on Foreign Affairs, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations is holding a hearing Wednesday morning, March 18, on U.S. Election Support in Africa.

Good.  Unfortunately, as was that much more conspicuous with the hearing about the 2013 Kenyan election, the subcommittee has scheduled testimony from the IFES/NDI/IRI troika, but without the Carter Center scheduled.  The Carter Center conducted the USAID-funded Election Observation Mission itself for Kenya in 2013, so the omission was hard to understand on a hearing on that very election; it is still hard to understand for an Africa-wide hearing.  (I have no idea why things have turned out this way, I am simply making the point that Congress would have an opportunity to be better informed if this wasn’t just an “all in the Beltway” experience.)

For Kenya’s last vote, see Carter Center quietly publishes strikingly critical Final Report from Kenya Election Observation.

For further discussion of the Subcommittee’s April 2013 Kenya hearing, see AfriCOG’s Seema Shah asks in Foreign Policy: “Are U.S. Election Watchdogs Enabling Bad Behavior in Kenya?”

In new developments, now with the British #Chickengate prosecutions for bribing Kenyan election officials: USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers.

The Carter Center also observed the 2002 and 1997 elections in Kenya, along with many others, including the most recent election in the Democratic Republic of the Congo in 2011 which provides perhaps another set of lessons as the Kabila government arrests democracy supporters and even a U.S. diplomat.

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

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”?

IRI Poll Releae Press Conference

The United States sure could use multiparty democracy, too

Big political news in the U.S. is the election loss of the Majority Leader in the House of Representatives, Eric Cantor, in the Republican primary. Losing a primary is something that “just doesn’t happen” to Majority Leaders (never in the 20th century or the first five elections of the 21st).
While Cantor was substantively to the right of Ronald Reagan and any of the other broadly popular conservative figures of the modern Republican Party, and was known as a key figure in blocking compromise by House Republicans with House Democrats in recent years, there is a perception that his loss will make future legislative compromises even less likely.

John McCain, the International Republican Institute chairman, has previously noted publicly the potential demand for a “third” party that would compete for the plurality of American voters that the Republican and Democratic Parties in present form merely tolerate (naturally he didn’t put it quite that way–he had a Republican primary coming up).

We have a political system that seems to be pretty well ossified under the control of two parties that have both changed quite dramatically during the period of their mutual hegemony. Each party presently has a majority in one house of our bicameral legislature, yet disapproval of this Congress comes about as close to a consensus as you will find in the United States today. Most voters don’t vote in most elections, especially primaries which functionally decide the outcome of vast numbers of legislative seats in districts that are dominated by a single party, often for demographically derived reasons.

The present reality on the ground has departed rather dramatically from our own traditions in important respects, and is at odds with the conceptual rationale for a “two party system” in which each party competes to build a governing majority.

What should we do? My suggestion: let’s enlist our official nonpartisan democracy and party-building experts at the International Republican Institute and National Democratic Institute. Offer the help to ourselves that we offer others. Heal ourselves first. Certainly in present circumstances it would be unduly controversial to consult any of the foreign democracy groups like the Westminster Foundation or the German party foundations, but IRI and NDI have well established Congressional relations on both sides.

It would be sort of like the instructions we all get when flying. Even if you are accompanying a child or disabled person, if there is a problem, put the oxygen mask over your own nose and mouth first, so you can breath freely enough to help.

To eliminate redundancy with constrained budgets and growing demand: Is it time to merge IRI and NDI?

Donkey

Mara Herd

This is a post I started a few years ago and let sit.  I usually avoid writing about things that directly mention the International Republican Institute other than as specifically necessary in regard to the 2007 election in Kenya and some advocacy for people arrested in Egypt.   It’s awkward for a lot of reasons to write about IRI,  the most personally important of which is my deep affection for people that work there.  And to the extent I have criticisms it would be my desire that they become better rather than that they be harmed.

Nonetheless, I think the structure of democracy assistance is something we need to think about and almost everyone who is in a position to be engaged is also in a position to feel constrained from speaking freely or has an unavoidable conflict of interest.  And its is an especially challenging time for the effort to share or support democracy so I am going to suck it up and proceed:

—————–

In an era of hyperpartisanship in the U.S. we are also faced with a divided government and a real question about our collective ability to do the basic business of governance in terms of passing budgets, for instance.

More specific to democracy support, the old notion that “politics stops at the water’s edge” is long dead. Every issue anywhere is contested space between Democrats and Republicans in grappling for power. [The attack on the U.S. government facility in Benghazi, Libya in September 2012 being perhaps the most conspicuous example.] There are profound divisions in a few areas of policy and culture between the Republican and Democratic base voters.  Nonetheless, it is also clear, ironically perhaps, that in the present moment there is not any clearly identified and coherent policy difference between the parties on foreign affairs as such. Now in the early stages of the 2013-16 presidential campaign, Republican Senator Rand Paul appears to be his party’s front runner for the nomination. The traditional Republican foreign policy establishment has less disagreement on specific points of foreign policy with the Obama Administration than with Senator Paul. And much of its membership would presumably in private vote for a Democrat seen as somewhat more hawkish and interventionist than Obama, such as for instance Hillary Clinton, than for Paul. Some piece of the base of the Democratic Party might well feel obligated to vote for Paul over Clinton in a general election if it came to it.

Referencing the policies of the most recent Republican Administration, which was in office when I worked for IRI in East Africa, there is no reason to think that Jeb Bush, for instance, believes in the “Bush Doctrine” and certainly Ron Paul doesn’t.  Foreign policy was important in the 2008 Democratic primaries and in the 2008 general election and there was at that time a sharp perceived difference between Obama/Biden and McCain/Palin over the aspects of foreign policy that were important to most voters and that difference was essential to Obama’s election.  Not so much in 2012 in either the Republican primaries or in the general election.  All presidential elections matter with great intensity for Washington foreign policy people because they decide who gets what jobs (like do you go to the State Department or stay at IRI or NDI or some think tank) and in general everyone is either Democrat or Republican and either wins completely or loses completely, heads or tails, each time.  For most American voters the relationship of parties and elections to foreign affairs is completely different.

The traditions of the Democratic and Republican foreign policy establishment in Washington are based on the Cold War, like the structure of the National Endowment of Democracy itself, with IRI and NDI along with the overseas arms of the U.S. Chamber of Commerce and the AFL-CIO as its “core” “private” institutes. Relatedly this tradition and structure is also critically Eurocentric. Going on a quarter century after the fall of the Soviet Union the terms of the contest between a democratic Washington and an authoritarian Moscow are very different in Europe itself today–and much less of immediate relevance in, say, Africa. The old days of the American Democrats supporting the democratic left in Europe and the American Republicans supporting the right–both as a pro-American alternative to Soviet-aligned Communists–are interesting history that we should learn more from, but they are history.  And we are not nearly so Eurocentric now in our policies and relationships in Africa, Asia and Latin America, so we have different types of opportunities to support democracy and its related values in those regions rather than dividing everyone up as pro-Western Bloc versus pro-Eastern Bloc.

In practice today, I don’t see the Democratic Party in power in Washington really aligned with the “democratic left” in other countries, given the lack of need to shore up against Marxist/Communist forces (among other reasons) nor much particular interest in the Republican Party in supporting more rightist or conservative parties abroad per se.  Generally Republican and Democrat campaign and media consultants, like lobbyists, seem to work for whoever they come to terms with commercially in any given emerging or frontier market rather than on the basis of some coherent party related framework.

Formally, IRI and NDI are completely overlapping as they are both non-partisan.  Occasionally they are said to be “affiliated” with their respective parties, but more frequently they are said to have “no connection” to parties.  Ultimately this is simply confusing and unclear–and not really consistent with the principles that the organizations are trying to teach to others.  In Germany where the government funds overseas institutes of the parties, the law is different and the government provides funding for the parties themselves in a way that would presumably be unconstitutional in the United States.  So you don’t have a counterpart to this strange melange of “nonpartisan Republican” or “nonpartisan Democratic” even though the German organizations are said to be a model for setting up IRI and NDI back in the early 1980s.

In my personal experience, I had the clear impression that IRI was quite serious about being legally compliant in terms of the 501(c)(3) nonpartisan formalities [and this was noteworthy in an  a organization that did not have an overall compliance component at that time–I am not going to be a whistleblower or even a public critic on this but have noted that they have gotten in at least a little difficulty with the government for ignoring cost accounting regulations that I told them they shouldn’t ignore when I worked for them].  I have no reason to assume that NDI is not equally serious.  In the case of IRI, with the chairman running for president two different times during his tenure, they know that the Democrats have had incentive to catch them if they were to get tangled with a Republican campaign; and of course everything is potentially tit-for-tat in that regard for the other side.

At the same time, both parties have an incentive to make as much use of “their” respective unaffiliates as permissible on a mutally backscratching basis.  While there are certain cultural and stylistic differences in how this plays out–as any observer of the current American political scene can well imagine–I don’t think this warrants the whole separate infrastructure of two duplicate organizations.  For instance, unaffliliated Republicans could still do programming at the Republican National Convention and unaffiliated Democrats could still do programming at the Democratic National Convention even if it was under the umbrella of one unaffiliated nonpartisan organization instead of two separate unaffiliated nonpartisan organizations. And the unaffiliated Republicans could apply a conservative orientation to have programming that is solid, on-message stuff supporting the party line; and the unaffiliated Democrats could be liberal-minded and have a “soft power” approach that involves people on both sides at the convention of their side.

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