Battle over Kenyan election corruption has commenced with vote in Parliament to ban the French vendor OT-Morpho/IDEMIA

IDEMIA f/k/a OT-Morpho before a name change (and previously Safran Morpho before the French defense conglomerate sold this division to the French technology group Oburthur Technologies in a transaction closed shortly before August 2017 Kenyan election) has been a fixture of the past two Kenyan elections.

I have written about issues involving these procurements numerous times over the years and am continuing my engagement with the USAID Freedom Of Information office in their review and processing of public information from USAID support to the Kenyan IEBC in the 2013 election, from my request in 2015. (So far they have processed and released or withheld about half of the records sent from Nairobi to Washington by early 2016. They continue to assure me that they are working away at this.)

See: Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows U.S. paid for failed Results Transmission system.

Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition.

Nigeria example shows why U.S. and other donors should act now on election technology procurement fraud.

USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers

Last July IDEMIA dismissed without explanation a defamation suit it had filed against Raila Odinga and other NASA coalition leaders in April 2018 shortly after Raila’s “handshake” with Uhuru ended high level political contention over problematic KIEMS system IDEMIA had sold the IEBC in March 2017. The court records I reviewed indicted a unilateral dismissal rather than a settlement.

The judgment of the Supreme Court in the 2013 election petitions of AfriCOG and the opposition found that there was evidence of procurement fraud with the failed technology acquisitions, and ordered an investigation, but the IEBC, Kenyan prosecutors and donors all failed on that account. OT-Morpho, n/k/a IDEMIA once again was chosen in an opaque and controversial procurement process for the bigger 2017 “integrated” system. (I was told by the USAID press office that USAID did not finance the KIEMS purchase for the IEBC for 2017.)

But finally today, reports the Daily Nation, “For credible elections, MPs vote to block Huduma Namba firm“:

Members of the National Assembly voted on Wednesday to block technology firm IDEMIA Securities from doing business in Kenya for at least 10 years, citing violation of the Companies Act.

The move complicates the ongoing Huduma Namba registration, as the contract was awarded to the French firm at Sh6 billion.

. . . .

The MPs amended the report of the House Committee on Public Accounts on the audited accounts of the Independent Electoral and Boundaries Commission (IEBC), to have the technology firm held accountable for irregular payments it received during the 2017 general elections.

So who “went native”? The Ex-Ambassadors’ greatest hit: “Sweet Home Kenya” [updated]

Could one make a case that perhaps it was not me after all, but more the Ambassador and/or others at the State Department who “went native” in Kenya over the 2007 election controversy (and in other situations)?

Interesting to think about as things have played out.

My memory was most recently jogged in seeing that James Swan, a distinguished diplomat who served as Deputy Assistant Secretary of State for African Affairs and signed off on some of the materials related to the 2007-08 Kenyan election controversy that I have obtained through FOIA and written about here over the years, has retired to a Nairobi post with the Albright Stonebridge Group business/investment advisory. (Albright Stonebright Group offers “commercial diplomacy” and advisory services and owns a substantial part of the equity of Albright Capital Management which in turn runs private equity funds out of the Cayman Islands which have investments in other funds and businesses with interests in Kenya, the Democratic Republic of Congo and other countries in the region. The Albright is former Secretary of State Madeleine, the NDI chair.)

Also one of those strange articles in The Daily Nation this past week, drawing on a particular bit of older Kenyan political history: the article notes that Ambassador Kyle McCarter will soon take up his post in Kenya for the United States, and that the first American Ambassador to Kenya, William Attwood, had acquired property in Kenya and wanted to retire there, but was banned from staying or returning to the country by Jomo Kenyatta who was angered by his act of publishing his memoir, The Reds and the Blacks. Without explaining specifically what Kenyatta was offended by, the article cites some of Attwood’s material about his perception of Cold War tied machinations involving the competition between Oginga Odinga and Kenyatta and allegations of Odinga’s separate East-bloc arms imports. It then notes Ambassador Ranneberger’s re-marriage to a Kenyan and his vacation home on the Coast at Malindi. (Interesting is the omission of any reference to Ambassador Smith Hempstone and his memoir, Rogue Ambassador, which details his interaction with “the second liberation” and his impressions of Raila Odinga and Mwai Kibaki.)

Maybe Ambassador McCarter is being reminded not to step too hard on certain toes so that the Government of Kenya remains cooperative with his family’s longstanding mission work in Tharaka Nithi?

The topic of “going native” came up for me in early 2010 when my security clearance was up for renewal for my job as a lawyer for Navy shipbuilding contracts where I had returned after my leave of absence to work in Kenya for the International Republican Institute in 2007-08. I filled out the detailed paperwork listing my foreign contacts over the previous years, including my work for IRI in Kenya, Somaliland and Sudan (later to be apparently stolen by Chinese hacking from the Office of Personnel Management) and had my interview with a retired military officer who had served in Somalia in the early 1990’s and thus knew the region.

I did not know how to initiate an explanation in my interview that I had gotten into a “he said/he said” with Ambassador Ranneberger about the 2007 Kenyan election on the front page of the New York Times but I expected it to come up in some form. After the interview, I got a follow up: was I sure that I had been loyal to the United States as opposed to acting on conflicting loyalties to Kenya–had I had gone native? I answered clearly and unequivocally. Essentially I asserted the lawyerly equivalent of the courtroom objection: “asked and answered”. “I already told you I was a loyal American before someone fussed — I have nothing to change.” Apparently this was satisfactory as I did not lose my clearance (and thus my job).

Jendayi Frazer, Asst. Sec. of State for African Affairs during the second G. W. Bush Administration and Swan’s superior during the 2007-08 Kenyan election imbroglio, maintains a home in Nairobi as I understand, and was the primary international spokesman, informally, for the “Uhuruto” campaign in 2013, accusing then Asst. Sec. State Johnnie Carson of “interfering” in the campaign by suggesting that the election of crimes against humanity suspects could have “consequences” in trying to tamp down the use by the Uhuruto campaign of a statement by President Obama that was asserted to bolster a claim that the U.S. had no concerns about the issue. Frazer has business interests in Kenya and with the Kenyan government, through the the Kigali domiciled but Kenya based East Africa Exchange commodity platform arising out of a partnership between Swiss trader Nicholas Berggruen’s Berggruen Holdings and the East African Community. See my previous post here. Frazer and a Berggruen representative are also on the board of the Mastercard Foundation based in Toronto which has extensive programs in the region. Frazier is an Advisor for Rice Hadley Gates, the international consulting firm of of her colleagues from the Bush Administration (Robert Gates also stayed on as Obama’s Secretary of Defense; Hadley was Rice’s Deputy National Security Advisor during the inception of the Iraq War and took over after she went to State where she brought over Frazer; Hadley also turned his experience to the chairmanship of the United States Institute of Peace. Carson has since retired from the State Department and is also affiliated with the Albright Stonebridge Group as well as the United States Institute of Peace and NDI.)

The cases of Attwood, Frazer, Swan and Ranneberger, if nothing else, are examples of the “Nairobi Curse”, demonstrating the advantages that accrue to Uhuruto in controlling access to permission to live and work in Nairobi.

Another famous case showing the “flipside” is British High Commissioner Edward Clay who complained of the milder-than-now corruption in 2004 that senior officials of Kibaki’s first Administration were eating as “gluttons” and “vomiting on [the] shoes” of donors who had stepped up to attempt to alleviate poverty and sickness among Kenyans. After his term ended in 2005 he continued to speak of corruption and was informed by then Kibaki Justice Minister Martha Karua during a BBC appearance during the early 2008 Post Election Violence in the wake of the stolen election that he had been declared persona non grata and banned from returning by the Government of Kenya in retaliation.

And of course there is the purge of the IFES Country Director during the 2017 Uhuruto re-election campaign.

[Update: to be clear, my point here is about the relationships and dependencies of individual Americans to the Government of the day in Kenya and Kenyan politicians in power, not to get into the merits or demerits of specific investment activity. I think it is good for Americans to be in Kenya and Kenyans to be in America. In concept, Frazer’s East African Exchange, for example, seems to offer potential benefit to small farmers, although the authorities in Rwanda and Kenya have a track record of contradictory priorities, so it is hard to know what to expect. As far as ASG and the associated private equity funds, I would think Nairobi is heavily served on the consultancy side but there is always a need for private direct investment in the region in the abstract, through the Caribbean or elsewhere, with the devil in the details of particular investments.]

Democracy Assistance needs an external non-governmental watchdog

Democracy assistance needed - Presidential campaign rally Trump Floida Democray assistance needed

This recommendation for the creation of a democracy assistance “watchdog” organization is where I have ended up from my own experience as an election observer and a volunteer trainer. And especially my role as a “sentimentalist whistleblower” from my time as “East Africa Resident Director” for the International Republican Institute with the failed 2007 Kenyan election.

I recently had the chance to visit with a wise American friend from my Kenya time who is of the persuasion that we, the United States, would be better advised on balance not to try “democracy promotion” and to step back from being entangled in foreign politics. My accumulated years of watching democracy assistance in addition to my own search to understand what has happened in Kenya in spite of my best efforts force me to take this view seriously in a way that I would not have some years ago. Nonetheless, I am still in a “different place”and have an alternative suggestion. (When my friend stated that she would rather we spent the money on educating children I had to concede that would be better, but we have been around long enough to know that would not happen.)

Admittedly I have not been objective. This goes to the “sentimentalist” aspect of my speaking out about what went wrong on my watch in Kenya in 2007-08 and what I saw going wrong in 2013. Even though losing or limiting valued personal friendships was inevitable as a result of being a dissenter and agreeing to speak on the record to The New York Times about what happened I did it because I felt obligated and I have continued to feel affection for my former colleagues. Nonetheless, having been briefly an insider and otherwise around the democracy assistance community does give me a basis to continue to believe that most of the people involved in democracy assistance are relatively sincere and would prefer to accomplish more for the intended beneficiaries of the assistance.

Beyond that, the reality is that we are going to continue to do democracy assistance anyway. The question is just whether we want to get better at it or not.

Democracy assistance has solid bipartisan support from Republicans and Democrats in Congress whether or not the base voters of either party are persuaded conceptually. Yet we observe by consensus that we are in a period of global “democratic recession” suggesting that what we have been doing may be suboptimal. People outside Washington generally do not have time and other resources to be engaged unless they are either participants (and thus beneficiaries) of the system or ideologically engaged to a degree that inhibits having a place at the table in Washington.

One of the problems is the inability to develop the learning and community of practice that would be available if there was greater transparency. Transparency is not really in the immediate short term interests of implementing organizations like IRI, NDI and IFES which for perfectly natural reasons would rather stay out of the line of fire from beneficiary critics of donor policies and just find it easier, like any of us, not to have anyone looking over their shoulder.

It is clear to me that the values behind “open government” would be most compelling in the area of democracy assistance itself. Donor taxpayers and intended beneficiaries of democracy assistance ought to see what they are paying for, and intended to receive respectively. The practice of informal secrecy creates opportunities for incumbent host governments to manipulate and divert programming. Informal secrecy also creates opportunities to avoid scrutiny of irregular interference in democracy programming by donor diplomats or others who may have competing objectives. [The essence of my experience as I summarized in “The Debacle of 2007″ for The Elephant.]

See also: “President Trump’s new Assistant Secretary of State for Africa candidly explained why election observation and technical assistance have to be firewalled from diplomacy to have integrity“.

Meanwhile donor funds are available to tell positive, promotional stories as part of the donors’ general public diplomacy efforts even if the stories may gloss over the grittier realities that would need to be dealt with to actually improve an aspiring democracy– whether just to burnish images or to serve “stability” by avoiding angering voters who might be upset to know more about how their leaders are conducting themselves.

Existing watchdog organizations do not seem well equipped to work on foreign democracy assistance–partly because they have so many seemingly bigger fish to fry. In an era of “permanent war”, massive defense budgets and big expenditures in health and other programs and huge, growing deficits, democracy promotion programs are going to continue to be below the radar and outside the ordinary bandwidth of most groups like the Project on Government Oversight that do much of the best oversight in other areas. Related limitations apply for public interest journalism.

The Inspector General function is available to deal with certain specific wrongdoing within USAID programs and can deal with things like theft of funds from implementing organizations but a watchdog outside government could help all of us learn whether we are really doing the right things with our resources to help democratic development. While the USAID investigation process of my complaints regarding my experience in Kenya at least generated the informal confirmation of my concerns there was no remedy offered nor public reporting. Realistically democracy assistance gets into messy political questions that can only be addressed candidly in the first instance from outside of government.

There is new attention in Washington to “competing” with China in East Africa. In the bigger picture we have entangled our own economy deeply with China’s for too many years to simply change our minds now so our relationship with China will be nuanced. We do see that China has moved in a more rather than less authoritarian direction in recent years and that the Communist Party of China is doing more to directly collaborate with like minded ruling parties as we see with Jubilee in Kenya.

If we care about democracy in the long term the size of China as a power committed enough to its own authoritarianism to work to suppress its own expatriates and manipulate news coverage in Africa is concerning even if it does not succeed in propagating the CPC model.

But we do not need to be reactive: let’s do what we do better instead of playing catch up on their terms if competition with China is a motivator. It is the ballot box, not Bechtel Corporation (as an example) that gives the United States a comparative advantage over China. To mutually share the opportunities of democracy effectively, we need to generate more transparency and better oversight for our democracy assistance.

Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition

Kenya EACC at Integrity Centre NairobiBack in 2015 I submitted a Freedom of Information request for USAID records relating to the election assistance through IFES for Kenya’s IEBC (the election commission).

The Mission in Kenya sent several hundred pages to the USAID FOIA office more than 30 months ago. A year ago I finally got the first release, simply a heavily redacted copy of the Cooperative Agreement itself funding the program.

I have just recently gotten the second release, the first substantive group of redacted copies of the underlying documents. From this I am starting to learn some information about the procurement of the failed Results Transmission System, but that matter remains somewhat sketchy so far.

Sadly I did see that IFES staff reported to USAID in the aftermath of the vote that they were busy working on the defense of the Supreme Court petition which impacted their availability to address questions about the systems issues.

I also learned that the election assistance donors were discussing amongst themselves the extent to which the UNDP, which administered “basket funding” for the election should cooperate with an investigative inquiry regarding procurements from the Ethics and Anti-Corruption Commission (EACC).

Kenya High Court Nairobi AFRICOG lawyer Harun Ndubi press conference 2013 election

I did learn that one prospective bidder for one Results Transmission System procurement reported to the USAID Mission December 2012 that the allowed time for proposals was insufficient, to no avail as USAID said the impending election date did not allow delay.

When I consulted with AfriCOG, the Kenyan civil society organization, on election observation, and court petitions were filed seeking first to enjoin the IEBC from proceeding with an informal/irregular alleged vote tally when the Results Transmission System failed, and then after the IEBC went ahead, to challenge the alleged results, I did not know the Results Transmission System was a U.S. Government procurement under the Agreement, nor of direct involvement of IFES in supporting the other side in the litigation.

USAID documents show profound U.S. policy shift in Kenya from disappointment on reforms and corruption in 2005-06 to Ranneberger’s April 2007 “building capital” with Kibaki

Kenya 2007 election- Ambassador Ranneberger and Connie Newman at polling station Nairobi

In my last post I discussed the late FOIA release of an April 2007 cable setting out U.S. Ambassador Michael Ranneberger’s explanation of a policy of hands-off neutrality on election reform proposals, and a “plague on both their houses” view of corruption. Ranneberger’s approach was to “build capital” with incumbent Mwai Kibaki’s Kenyan government heading into his re-election campaign, while distancing the U.S. from dissenting opposition and civil society voices.

A very different take was set forth only a few months before in documents released to me by USAID in 2014 under a FOIA request relating to the exit and public opinion polling program I managed in that 2007 election cycle as Chief of Party for the International Republican Institute. In memoranda from November 2006 to release a second round of $250,000 in funds for the polling program which had started with an exit poll for the 2005 Constitutional Referendum, USAID noted “a policy shift toward NGO and civil society partners in light of the weakening of Kenya’s Executive Branch as a reliable and willing partner in areas such as Democracy and Governance”.

Here are excerpts from the documents linked above:

PROGRAM BACKGROUND

Embassy Nairobi has requested that the funds be used to support activities to strengthen democracy and governance, environmental sustainability and economic development and trade. All the programs will be managed by the United States Agency for International Development (USAID).

In FY 2006, the funds will be used as follows:

*Democracy and Governance ($2,570,000):

$2.25 million will be used to support domestic and international observations, including training for political party agents and independent observers, allowing them to assess whether the presidential and parliamentary elections in 2007 are non-violent, transparent, and competitive.

ADDITIONAL INFORMATION

*The U.S. Government seeks to build a democratic and economically prosperous Kenya. This is addressed through five strategic objectives focusing on: reducing fertility and the risk of HIV/AIDS transmission; improving natural resource management; improving the balance of power among the institutions of governance; increasing rural household incomes; and supporting education for children of marginalized populations.

PROGRAM DESCRIPTION

I. SUMMARY

The Recipient [IRI] shall institute a program to improve and increase access to objective, reliable information on citizen views and reform priorities through public opinion polling. The Recipient’s activities aim to provide this information to the Kenyan public, Kenyan policymakers, and the diplomatic community and to improve the science and popular perception of opinion survey research in the country.

II. BACKGROUND

The degradation of political discourse and consensus-building in Kenya since the country’s landmark 2002 election has culminated in the stalemate over the constitutional reform process. Having ridden a wave of public optimism into power, the National Rainbow Coalition (NARC) followed through on several of its most important promises during its first year in power. Shortly after taking office, President Mwai Kibaki’s government instituted free primary education nationwide. It also made a strong start in attacking the problem of corruption, beginning with a purge of corrupt members of the judiciary. However, in many areas of concern the performance of the government has been disappointing. Despite its promise of a new constitution within 100 days of taking office, deep disagreements within the NARC government about the content of various drafts have kept this new constitution from Kenyans for nearly three years. Furthermore, NARC’s promises of 500,000 new jobs per year and a vastly reduced crime rate have not materialized. Most unfortunate has been the government’s lack of seriousness in dealing with the resurgence of corruption at high levels of the Kenyan government, resulting in severe criticism by donor countries and civil society groups. Poverty and unemployment remain high; electricity, water, and other services are provided on an irregular basis; and violent crime is prevalent and uncontrolled. Expectations among Kenyans were high that the new leadership would bring rapid relief, but most of the problems have worsened, remained unchanged, or been only marginally improved during NARC’s first three years in office.

. . . .

A chief obstacle for the political parties and other major stakeholders in Kenya has been the lack of reliable information on the concerns and opinions of ordinary Kenyans. Policy priorities are set by political elites who have almost no access to data regarding trends in public opinion and no means by which to gauge how popular or unpopular specific policies are with different segments of the population. In he first few years of this decade, a number of influential opinion polls were conducted that showed the deep satisfaction of the Kenyan public with the Moi government and their desire for a viable alternative to come out of the scattered opposition. These surveys, including one poll conducted by the Recipient [IRI] in 2002 that showed for the first time that a united opposition could beat the Kenya African National Union (KANU), gave strong impetus to the formation of the NARC coalition.

However, after 2002, opinion polling did not become a regular feature of the Kenyan political scene . . . Some major media houses . . . most of these polls have focused exclusively on the “horse race” issues most likely to sell newspapers . . . Moreover, the methods used in some of the most widely-reported polls have been fiercely criticized . . .

. . . .

The future of democracy in Kenya is now much more uncertain than it seemed amid the euphoria of the 2002 election . . . .

It needs to be noted as well that in seeking release of additional funding for the IRI polling in 2006 USAID noted the IRI’s successful performance to date, including the “accurate” 2005 exit poll with the completion of all items on the program work plan, which included the public release of the exit poll results.

(Thus I was taken aback by the objection to public release of the 2007 exit poll results under an extension of the same program, not having incorporated a new direction of “building capital” into the program.)

On Cambridge Analytica for Kenyatta, The Star reported arrival of a campaign team back in May – why no follow-up?

Below is a draft post I wrote but did not publish back on May 10, 2017:

Uhuruto re-election and Cambridge Analytica coverage in The Star: why now?

Today, the Star, Nairobi’s previously opposition-leaning third daily newspaper (a must read together with The Daily Nation and The Standard) ran a story announcing the arrival of a team from Cambridge Analytica for the Uhuruto/Jubilee re-election campaign.

Note the attribution to “well placed sources in the Office of the President.”

Generally speaking the Kenyan media declines to cover the foreign firms working the Kenyan election campaigns, especially for an incumbent president.  That type of thing is in the category of “we are a ‘free press’ but not free like that”.  For the “foreign correspondents” the Western campaign operatives are fellow habitues of the expat “circle of trust” or omertà or whatever you want to call it: sources not subjects of reporting.

So why this story today?  If I can put myself in the loafers of an Uhuruto campaign operative rather than just a bystanding fan of “truth, justice and the American way of life” I might want this for a couple of ressons that I can think of: 1) this could be what has been famously termed a “limited modified hang out” – if information is starting to leak you might want to seize control to misdirect attention by putting out a shaped half-truth version; 2) this could be a way for the Uhuruto campaign to “signal” the idea that it has powerful support in Washington and London in response to the black eye received in the form of the USAID suspension of Ministry of Health funding due to corruption which went public Monday.  Of course, this is all just hypothetical/conjectural “thinking out load” from someone who is not involved.

One of many fruitful questions for further review now is the extent to which these operations were run by Government of Kenya officials out of Government offices.

Was Cambridge Analytica given access to Government of Kenya data? On the pattern of use of State resources for the Jubilee campaign, beyond running the campaign through office holders and out of the Office of The President and State House, note this from The Star story;

Aspirants who won nominations in the just-concluded Jubilee primaries will be expected to campaign for Uhuru in their home areas.

A deal has been offered to nomination losers to stick with Jubilee and be rewarded with state jobs after the election.

Here is yesterday’s Reuters report with the first “on record” confirmation from Jubilee after the now-infamous Channel 4 undercover expose and leaks regarding Facebook that it used SCL/Cambridge Analytica in the campaign.

And please remember as well the role of the American firm Harris Media: “Don’t Mess From Texas: disturbing Privacy International report indicates Uhuruto re-election campaign bought Texas-based negative propaganda campaign.”

Don’t be confused: preparations for Kenya’s failed August election election were controlled by Kenya’s ousted “Chickengate” IEBC and its CEO and staff with support of international “partners”

From this blog late last year:

Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.

While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.  

Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)

Update: see Roselyne Akombe’s interview in the Saturday Nation, Credible Oct. 26 election not possible: Akombe” 

“Sitting on” the embargoed USAID-funded IRI exit poll indicating opposition win in Kenya 2007 election, I wished someone would subpoena me

 

A Kenyan blogger wrote in early 2008 that  I “should be” subpoenaed after I was reported in Slate magazine as “sitting on” the embargoed USAID-funded IRI exit poll. I would have welcomed it. Sadly no subpoena came.  No one approached me except from the media as I hoped that the decision would be made in Washington to end the embargo as Joel Barkan and I urged.

The exit poll was publicly released by the the University of California San Diego research team at an event at CSIS in Washington only in July 2008 after the six month publicity restriction in their consulting contract with IRI. [ed. note: Remember it was then released in August by IRI.]

By that time, it mattered  for “the war for history” as to whether the election had actually been stolen or not, but had no real time impact in that Kibaki’s second full term was well underway.  The “Kreigler Commission” reporting to President Kibaki was staying off the question of what really happened to the presidential tally at the ECK.

Lessons for today, in time to matter?

What if vital information about what happened with the presidential tally is in the hands of people working for the donor-funded election assistance operations who wish they could provide that information and answer the vital questions?

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.”