“Livondo Tosha”? Akasha Brothers sentencing memo has “interesting” discussion about Stanley Livondo, Kibaki/PNU candidate to unseat Raila in Langata in ill-fated 2007 election

“Livondo Tosha”/”Make Peace” in Kibera, early 2008:

Kenya Kibera Post Election Violence Livondo Tosha Keep Peace

From the U.S. Attorney’s Memorandum to the U.S. District Court for the sentencing hearing for Baktash and Ibrahim Akasha, filed back on July 25. (Yesterday Baktash was sentenced to twenty five years, and The Star published a downloadable copy of the Memorandum. ) At page 23:

D. The Akashas’ Armed Confrontation with Stanley Livondo
Tensions escalated in the weeks after Ibrahim kidnapped Armstrong. Baktash began to receive threatening calls and text messages from a local politician associated with Armstrong— Stanley Livondo. Soon after, Livondo confronted Baktash at a shopping mall, and the two began to fight. Ibrahim intervened, drew his gun, and threatened to kill Livondo. The sight of Ibrahim’s gun caused panic in the shopping mall, and so Baktash, Ibrahim, Goswami, and Baktash’s bodyguard quickly fled. Before heading to the police station to ensure—with bribes—that there was no fallout from the incident, Baktash, Ibrahim, and Baktash’s bodyguard stashed their guns with Goswami. They retrieved the weapons later that day.

Armstrong as described in the Memorandum manufactured drugs in Congo and elsewhere and brought them into Kenya. He got into a relationship with the Akashas in this context from which he wanted out, leading to his kidnapping as discussed, and the threats to Baktash Akasha from Stanley Livondo.

Livondo was the candidate of Kibaki’s PNU in the December 2007 elections in Raila Odinga’s Langata Constituency who Amb. Ranneberger told me on December 15, 2007 “people were saying” might unseat Raila, which would disqualify Odinga for the presidency even if he beat Kibaki nationally in the presidential race.

See my discussion here from my post of July 2011, “Lessons from 2007 and new FOIA cables–Part Two”:

So on Saturday afternoon, December 15, 2007, I drove to the embassy residence in Muthaiga and was served tea . . .

. . . .

Ranneberger did let me know that he knew what Bellamy [his predecessor as U.S. Ambassador, Mark Bellamy] had been told as to why he had been dropped from the [International Republican Institute election observation] delegation.  In other words, he was letting me know, without taking responsibility for the situation himself, that he knew that “we” at IRI had lied to Bellamy.  This may not have put us in the best position to hold the “no more b.s.” line with Ranneberger going forward.   He didn’t say how he knew about the “story line” to Bellamy and I have no idea myself.  IRI was in a difficult situation not of our making on the Bellamy situation–would we cancel the Election Observation (as the only international NGO scheduled to observe, and raise lots of questions we couldn’t very well answer) or let the Ambassador interfere with the delegation? Regardless, once the directive from the top was given to lie to Bellamy about why he was off the list, IRI no longer had completely clean hands.

There are a variety of things from the more substantive part of the discussion that leave open questions in my mind now after what ultimately happened with the ECK and the election.  One in particular that stands out now in light of the FOIA disclosure.

The Ambassador told me that Saturday that “people are saying” that Raila Odinga, as the leading opposition candidate for president, ahead in the polls as the vote was nearing, might lose his own Langata parliamentary constituency (which under the existing system would disqualify him from becoming president even if he got the most votes nationally).  This was “out of the blue” for me because I certainly was not aware of anyone who thought that.  Odinga’s PNU opponent Stanley Livando had made a big splash and spent substantial money when he first announced, but he had not seemed to get obvious traction in the race.  Naturally, I wondered who the “people” Ranneberger was referring to were.  Ranneberger said that a Raila loss in Langata would be “explosive” and that he wanted to take Ms. Newman with him to observe voting there on election day.

Ranneberger also went on to say that he wanted to take Ms. Newman [lobbyist and former Asst. Sec. of State Constance Berry Newman, IRI’s lead delegate for our International Election Observation Mission at Ranneberger’s impetus, and his “great friend and mentor” and now lobbying associate at the firm Gainful Solutions] separately to meet with Kibaki’s State House advisor Stanley Murage on the day before the [Dec. 27] election with no explanation offered as to why.

After midnight Nairobi time I had a telephone call with the Africa director and the vice presidents in charge at IRI in Washington in the president’s absence.  I was given the option to “pull the plug” on the observation mission based on the concerns about Ranneberger’s approach following my meeting with him.   The Ambassador, rather than either IRI or USAID, had initiated the observation mission in the first place, and IRI was heavily occupied with other observations.  Nonetheless, based on assurances that Ms. Newman would be fully briefed on our agreement that she needed to steer clear of separate interaction with the Ambassador and that the Murage meeting must not happen, and my belief that it would be an “incident” in its own right to cancel the observation, we agreed to go forward with precautions.

I got the idea of commissioning a separate last-minute poll of the Langata parliamentary race.  I thought that the notion that Livondo might beat Raila in Langata seemed far fetched, but objective data from before the vote could prove important.  We hired the Steadman polling firm for this job, to spread the work.  Also Strategic was already heavily occupied with preparing for the exit poll, and  Steadman was the firm that Ranneberger had instructed his staff to call (too late as it happened) to quash the release of poll results that he knew  would show Raila leading back in October, so I thought that it was that much more likely that word would get back. Further, in the partisan sniping which I generally did not credit, Steadman was claimed by some in opposition to be more aligned with Kibaki so would be extra-credible to verify this race.  I also made sure that we scheduled an “oversample” for Langata for the national exit poll so that we would have a statistically valid measure of the actual election day results in the parliamentary race.

On to the new FOIA release:  On Tuesday, December 18, Ranneberger sent another cable to the Secretary of State entitled “Kenya Elections:  State of Play on Election”.  This cable says nothing about the “explosive” Langata parliamentary race issue that Ranneberger had raised with me on Saturday, three days earlier.  It concludes:  “Given the closeness of the election contest, the perceived legitimacy of the election outcome could determine whether the losing side accepts the results with minimal disturbances.  Our staff’s commendable response to the call for volunteers over the Christmas holiday allows us to deploy teams to all sections of the country, providing a representative view of the vote as a whole.  In addition, our decision to host the joint observation control room will provide much greater access to real-time information; allowing a more comprehensive analysis of the election process.”

Next, we have a cable from Christmas Eve, December 24, three days before the election.  The first thing that morning the IRI observation delegates were briefed on the election by a key Ranneberger aide.  I told him then that we had commissioned the separate Langata poll.  He said that the Ambassador would be very interested, and I agreed to bring results with me to the embassy residence that evening when the Ambassador hosted a reception for the delegation.  The results showed Odinga winning by more than two-to-one.

There are a number of noteworthy items that I will discuss later from this cable, but for today, let me note that  Ranneberger has added in this cable a discussion of the Langata race:

“11.  We have credible reports that some within the Kibaki camp could be trying to orchestrate a defeat of Odinga in his constituency of Langata, which includes the huge slum of Kibera.  This could involve some combination of causing disorder in order to disenfranchise some of his supporters and/or bringing in double-registered Kikuyu supporters of the PNU’s candidate from outside.  To be elected President a candidate must fulfill three conditions:  have a plurality of the popular vote; have at least 25 percent in 5 of the 8 provinces; and be an elected member of Parliament.  Thus, defeat of Odinga in his constituency is a tempting silver bullet.  The Ambassador, as well as the UK and German Ambassadors, will observe in the Langata constituency.  If Odinga were to lose Langata, Kibaki would become President if he has the next highest vote total and 25 percent in 5 provinces (both candidates will likely meet the 25 percent rule).

12.  The outside chance that widespread fraud in the election process could force us to call into question the result would be enormously damaging to U.S. interests.  We hold Kenya up as a democratic model not only for the continent, but for the developing world, and we have a vast partnership with this country on key issues ranging from efforts against HIV/AIDS, to collaboration on Somalia and Sudan, to priority anti-terrorism activities.

.  .  .

14.  As long as the electoral process is credible, the U.S.-Kenyan partnership will continue to grow and serve mutual interests regardless of who is elected.   While Kibaki has a proven track record with us, Odinga is also a friend of the U.S. . . .

15.  It is likely that the winner will schedule a quick inauguration (consistent with past practice) to bless the result and, potentially, to forestall any serious challenge to the results.  There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.  Pronouncements by the Chairman of the Electoral Commission and observers, particularly from the U.S., will therefore have be [sic] crucial in helping shape the judgment of the Kenyan people.  With an 87% approval rating in Kenya, our statements are closely watched and respected.  I feel that we are well -prepared to meet this large responsibility and, in the process, to advance U.S. interests.”  END

None of this material was mentioned in the briefing to the observation delegation or to me that day.  Long after the election, the Standard newspaper reported that the original plan of the Kibaki camp had been to rig the Langata parliamentary race, but at the last minute a switch was made to change the votes at the central tally, supposedly on the basis of the strength of early returns for Odinga in Western and Rift Valley provinces.

To be continued .  .  .  .

For my entire series of posts from 2011-2012 see my page “The Story of the 2007 Election Through FOIA“. And my summary story in The Elephant: “The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With U.S. Connivance“.

Langata Ballot Specimens showing Kibaki versus Odinga for President and Livondo versus Odinga for Member of Parliament:

State Department announces sanctions on head of DRC election commission and constitutional court for “significant corruption”

Good. Let me appreciate this action by the State Department to address a corrupt voting process and pull back from previous language that skipped over what seems to be the reality of what happened.

Here is the statement.

It would seem that collectively we (the U.S.) want to recognize Tshisekedi as fait accompli and “not Kabila”, and make the most of the opportunity for a better relationship and progress while still holding a small flame against election fraud for the future and not be “complicit” in covering it up. I very much approve of not being complicit in a cover up even if we are just trying to make the best of the situation with good intentions.

In Kenya in 2008 we issued private travel sanctions against two members of the election commission, the then ECK, for suspected bribery, but said nothing publicly. In that case there was violence from the election fraud and we had withdrawn our initial congratulations. We never disclosed the sanctions or the issue or evidence regarding the bribery but I learned of the matter from a Daily Nation story from a stolen cable from Wikileaks:

The Daily Nation– “What the cables say” (Feb ’08 US visa warning letters sent to ECK commissioners suspected of accepting bribes to fix vote tally) Mar 2 ’11 The link is apparently dead now; for discussion of the story please see Part Seven of my series on the page “The Story of the ’07 Election Through FOIA” under “The War for History Series: was Kenya’s election stolen?.

The public sanctions now, to me, are a step forward in responding to election corruption and I appreciate that we are taking this step. I also appreciate the many people influential in Washington who have spoken out publicly on the problem and laid the groundwork for this, noting Amb. Michelle Gavin at CFR and Joshua Meservey at Heritage. And of course Nic Cheeseman of Democracy in Africa and the University of Birmingham has been a ubiquitous friendly voice for the democratic process throughout.

As discussed in my previous post “Foreign Policy article gives insight on disagreements within Trump administration on backing off on criticism of flawed DRC vote” we learned a good bit about the intergovernmental back and forth on the U.S. side on these issues from the work of Robbie Gramer and Jeffcoate O’Donnell. (As I wrote I know there was some of this in Kenya 2007 but no one seems to have been willing to write about it yet and I only have pieces.)

So, what’s next?

Foreign Policy article gives insight on disagreements within Trump administration on backing off on criticism of flawed DRC vote

Foreign Policy has published a piece reporting significant internal dissent from the reversal of the U.S. position from significantly negative to largely positive on the recent DRC election:

. . . .

In a series of preliminary statements crafted by the team and released by the State Department on Jan. 3, 10, and 16—before confirmation of the final results—the United States sharply condemned reports of election-related interference and violence. The Jan. 3 statement included a threat that people involved “may find themselves not welcome in the United States and cut off from the U.S. financial system.”

With the Constitutional Court’s decision to confirm the election later in the month and with news of widespread election fraud, the group drafted a new U.S. response on Jan. 23. It noted the election results rather than welcoming them—a diplomatic way of signaling displeasure—and condemned the “deeply flawed and troubling” election, according to a draft reviewed by FP. It also stated that Congo’s electoral commission “failed to live up to the responsibility” it had to carry out elections fairly and ivowed that the United States would “hold accountable” any figures engaged in election fixing or violent crackdowns on any ensuing protests.

But none of this language made it into the final statement. Instead, Washington welcomed the results and declared itself committed to working with Tshisekedi. The revised statement made only passing mention to “electoral irregularities.”

Michael Hammer, the U.S. ambassador to Congo, along with Michael McKinley, a senior career diplomat advising Secretary of State Mike Pompeo, pushed for the revised statement, according to three U.S. officials. The department’s third-ranking official, David Hale, ultimately signed off on it, the officials said.

Senior U.S. officials in other agencies and some State Department officials—including the special envoy for the region, Pham—were kept out of the final decision entirely and did not know that a shift in policy was in the works, officials told FP. They said some officials found out about the shift in policy only once the statement came out. It left some of them fuming.

“If we said we’ll hold the government accountable … and five days later we congratulate a bunch of thieves, what good are our threats?” one senior U.S. official said.

One former State Department official familiar with the process said the implications went beyond Congo. “It was just a stupid decision to release that statement, a statement that has much bigger bearing on U.S. government democracy promotion in Africa,” the former official said.

The State Department, USAID, and NSC all declined to comment for this story. A State Department spokesperson also did not respond to a request to interview the senior diplomats who FP was told were involved in the process. . . . .

This is the kind of thing I always had hoped to see about Kenya 2007 where the U.S. initially relied on what my FOIA research indicates was a pre-determined blessing of Kibaki’s alleged re-election even after Ambassador Ranneberger witnessed vote totals being changed by the Kibaki-controlled Electoral Commission of Kenya and reported some pre-knowledge of unlawful rigging plans and conduct. In the face of violence the initial congratulations were withdrawn and the State Department pivoted to support a negotiation to include the opposition in a sharing of power with Kibaki. I know that there were differing internal opinions but I have never seen this level of public reporting on the internal debate.

Some of this may reflect differences in the internal environment and reporters’ expectations and aspirations during the Bush and Trump administrations as well as “the times” more generally. Regardless, I am glad to know more about how my government made this decision and encouraged that the problems with the positive statement final statement on the were recognized by some of those involved.

On the Congressional side, here is the January 18 Statement from the incoming Republican Ranking Member on the Foreign Affairs Committee:

Washington D.C. – House Foreign Affairs Committee lead Republican Michael McCaul (R-TX) released the following statement on the fraudulent election in the Democratic Republic of Congo (DRC).

“After eighteen years of the Kabila regime, the Democratic Republic of the Congo had a historic opportunity to give its people a voice by holding free and fair elections. Millions of Congolese bravely went to the polls to cast their vote amid long lines, intimidation and violence. Unfortunately, the fraudulent vote count does not demonstrate the will of the people. 

“I commend the African Union’s call for transparency and credible election results. All parties must refrain from violence as this process continues. It’s imperative for the United States and the rest of the world to stand with the Congolese people to demand an accurate vote tally and I urge Secretary Pompeo to fully engage at this pivotal moment. All individuals who impede this democratic process must be held accountable.”

I would also like to know more about slightly more gradual process of walking back the substance of our objections to Kabila’s 2011 re-election vote during the Obama administration.

Lake Edward into Congo

 

 

Kenya elections: State Dept declassifies memo of Jan 3, 2008 telecon between Secretary Rice and H.R. Javier Solana on “power sharing”

I originally sought this document in a separate FOIA in 2009 because it seemed to me in Nairobi in real time as Chief of Party for the USAID-funded exit poll and election observation programs that this Rice/Solana conversation marked a key  point for Kibaki in locking down a second term. Up until that time, as best I could tell, the EU supported remediation of the bad election (stolen through bribery as I was told by a diplomatic source later that January during the continued violence as I have written) whereas US Ambassador Ranneberger moved to support “power sharing” as soon as the initial U.S. congratulations to Kibaki were withdrawn.  That same day the Kenyan Attorney General called for an investigation of the alleged election results (such an investigation never in substance happened, although it was a key proviso of the February 2008 settlement agreement between Kibaki on behalf of PNU and Odinga on behalf of ODM and the legislation entering the deal into Kenyan law).

The document was withheld in full on national security grounds in the original 2010 FOIA response and again on appeal, then again in 2016 on a follow up Mandatory Declassification Review request after the requisite two year wait.  Today’s mail was the favorable response to my September 2016 appeal..

See from my page with a chronology of links for the election (in particular BBC’s January 3 “Tic-Toc”):

A CHRONOLOGY IN LINKS:

EA Standard–”Envoy predicts free and fair election” (and praises Kenyan administration on corruption), Dec 18 07

Daily Nation–”Local Firm Conducted Exit Poll Expected to Give Provisional Presidential Results”, Dec 28 07

Somaliland Times–”Kenya: Preliminary Findings of IRI’s International Election Observation Mission” Dec 28 ’07

IRI–“Reuters cites IRI Opinion on Kenyan election” Dec. 28 ’07 

EU Election Observation–Statement on Announcement of Presidential Results, Dec 30 ’07

VOA–”US Congratulates Kenya Presidential Vote Winner, EU Monitors Question Results” Dec 30, ’07

Global Voices–“Is Kenya turning into a police state?” Dec 31 07

Telegraph-“Kenya could be facing it’s greatest crisis” Dec 31 07

VOA–”Britain Expresses Concern About Kenyan Election Results” Dec 31 07

EU Election Observation–Preliminary Statement, Jan 1 08

NY Times–”Fighting Intensifies After Election in Kenya” Jan 1, ’08

Telegraph–EU calls for inquiry into Kenya election Jan 1 ’08

Slate–”What’s Really Going on in Kenya?” Jan 2, ’08

USAToday- “Kenyan official calls for vote probe” Jan 3, ’08

BBC- “At a glance: Kenya unrest” Jan 3, ’08

CBS/National Review Online–”Inside Kenya’s Clumsily Rigged Election” Jan 4, ’08

IFES–“Kenya at the crossroads” Jan 4, ’08

Remembering Paul Muite’s open questions about the IEBC’s integrity before Kenya’s previous elections

Back in February 2013 The Africa Report ran a feature entitled “Can Kenya’s judiciary and election commission pull it off?” on readiness for the general election on that March 4. In a blog post from that April after the Supreme Court upheld the election I discussed Hon. Willie Mutunga’s “judicial philosophy” in the context of what he had had conveyed in that Africa Report just before the vote.

With this year’s Supreme Court decision annulling the August 8 presidential vote with Paul Muite, one of Kenya’s most prominent lawyers–and sometimes “Central Province” politician and official–representing the Election Commission (IEBC) I thought it was worthwhile to highlight his pre-election integrity concerns when he was not litigating:

There is, however, nervousness about how the IEBC will fare.

Led by Ahmed Issack Hassan, the IEBC has enjoyed public confidence since August 2010 when it ran the referendum on the new constitution.

It then held several by-elections with textbook efficiency.

But troubles began last year over a tender for biometric voter registration kits.

After anomalies were exposed, the government intervened and awarded the tender to France’s Safran Morpho at almost double the stipulated cost.

The delayed voter registration was com- pressed to one month instead of three.

James Oswago, the IEBC chief executive, says it is absolutely committed to transparency: “In fact, I am not aware of any public procurement officer who has referred a controversial process to the government for arbitration. I did. You have not heard anybody going to court for corruption linked to this process.”

Unlike the old Electoral Commission of Kenya, whose top officials were in the president’s gift, the IEBC has nine one-term commissioners including Oswago, who acts as secretary to the board.

Each commissioner was selected after consultations between President Kibaki and Prime Minister Odinga, the two main rivals in the 2007 election, and then vetted by parliament.

“We have in place structures that invalidate a discretionary announcement – a rigged vote. You can accuse the commission of inefficiency or of lateness and so on, but not of rigging,” Oswago says confidently.

INTEGRITY QUESTIONS

But Paul Muite, a lawyer who is contesting the presidency himself, does not share such certainty: “The IEBC is not inspiring confidence. I am not sure that they have the capacity or political will to conduct credible elections.

“There are integrity questions regarding some commissioners […] the composition of the commissioners was motivated not by merit but by the coalition government’s need for ethnic and regional balance.”

Similarly, a report by South Consulting, which has been monitoring the coalition government for the Panel of Eminent African Personalities led by former United Nations secretary general Kofi Annan, raised questions about the IEBC’s capacity.

It questioned its capacity to act decisively on electoral disputes and pointed to its inability to censure rogue parties and politicians during the chaotic party primaries in January.

In January, the IEBC vetted and registered eight presidential candidates, rejecting two on technical grounds.

Among those approved was Uhuru Kenyatta, although he was facing a local case challenging his candidature on integrity grounds.

The case is unlikely to be decided before the presidential elections.

It seems the IEBC did not want to prejudge it, so was happy to let the courts decide.

Pressure is certain to build on the new and inexperienced IEBC as elections approach and then again in likely second round elections.

The courts, determined to uphold their independence, will probably act as a buffer against violent street protests.

The police force, overstretched as it is and caught in a maelstrom of reform, resistance and warring political factions, may not.

Voters may find themselves caught between these two institutions●

Read the original article on Theafricareport.com : Can Kenya’s judiciary and electoral commission pull it off? | East & Horn Africa

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Kenya Supreme Court clarifies a common sense interpretation of duties of IEBC Chairman as National Returning Officer

Daily Nation: “Chebukati cannot edit poll results“:

In their judgement, five judges of the court said where there are discrepancies between results in Forms 34A and 34B, the chairman should announce the results and leave the matter to the court.

The judges said Mr Chebukati has the duty to verify the results as transmitted electronically.

However, whenever he detects errors, he should notify the parties, observers and the public and leave it to the election court.

. . . .

However, the Supreme Court faulted Wafula Chebukati, who is national returning officer, of announcing the winner before comparing the results in Forms 34A and 34B.

The court stated, “There can be no logical explanation as to why in tallying the Forms 34B into Forms 34B into the Forms 34C, this primary document (Forms 34A) was completely disregarded.”

I would say that the underlying factual–if not “logical”–explanation is that Mr. Chebukati gambled on August 11, likely under great pressure, that the “Maina Kiai decision” left unappealed by the IEBC, left a loophole that could be exploited to announce a national “result” early from the purported constituency returns in spite of the knowledge that a huge number of the polling station returns had not been transmitted as required by law.  This gamble did not work and Mr. Chebukati has now obtained from the Supreme Court notice to all interested parties that it still will not work going forward.

A classic example of why Kenyans are frustrated with the mix of international Election Observers and Media

Kenya 2007 election Kibaki Tena Kazi iendelee re-election

Can John Kerry help stop Kenya from slipping into Post-Election Violence Again?“, Newsweek, 10 Aug 2017:

Beyond the “Western patrician savior” headline:

. . . .

I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.

 The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.

But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.

Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.

Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.

Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.

Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)

Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.)  Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month).  No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting.  No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.

No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.

Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.

Kenya Election Trump White House congratulates Kenyatta on fair and transpaent re-election

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.”

Kenya Election: How IEBC CEO explained what was legally required for electronic Results Transmission and how KIEMS was to meet requirement

IEBC’s high-tech system to guard against ballot stuffingThe Standard July 22, 2017

The Independent Electoral and Boundaries Commission (IEBC) has assured that the integrity of the August 8 election has been guaranteed through tamper-proof technology.

The Kenya Integrated Elections Management Systems (KIEMS) has unique features that will make double voting, ballot stuffing, and irreconcilable voting patterns impossible. IEBC is already preparing to deploy 45,000 KIEMS kits to be used in all the 40,883 polling stations across the country.

Every polling station has been allocated a Kit with a maximum number of 700 voters depending on the size of the polling centre. By implication, voters in a polling station cannot exceed the allocated number.

The KIEMS technology has two main functions in this election. The first is biometric identification of voters on the election day and results transmission after counting the votes.

The Commission has made it mandatory for all voters to be identified biometrically to close the doors for possibility of resurrection of dead voters.

IEBC Chief executive officer Ezra Chiloba said the Commission has invested heavily in technology and can guarantee successful transmission of election results.

“We have no choice really. The law already demands of us to electronically transmit presidential results from the polling station to the tallying centres,” he said.

After counting of results, the presiding officers in the presence of party agents are expected to type the total number of votes garnered by each candidate into the kit.

The kit aggregates the results automatically and the total number of votes cast for all the candidates is recorded. In cases where the number of voters exceeds the total number of registered voters, the kits shall automatically reject the results. This measure, according to the Commission, effectively makes ballot stuffing impossible.

As an additional measure to guarantee the integrity of elections results, the presiding officer shall scan Form 34A using the KIEMS kit. The Form 34A is signed by both the presiding officer and party agents. Once scanned, the presiding officer shall, together with the text results, send the same to the national tallying centre and constituency tallying centres.

The kit shall equally report turnout trends periodically throughout the day. With this kind of monitoring, the Commission says, ability to identify abnormal voting patterns is guaranteed.

At the end of the voting, said Mr Chiloba, the presiding officers in the presence of party agents are required to reconcile the number of voters recorded by KIEMS as having voted and the number of ballot papers issued.

“We have two procedures that minimise the risk of ballot stuffing. One, the voter turnout as recorded by KIEMS. Two, the ballot papers reconciliation that happens at the end of voting. The number of ballots papers issued and the records of voter turnout as registered by KIEMS should be able to reconcile,” he said.

The Commission contends that once the presiding officer has pressed the “Submit” button, the results cannot be changed by anyone.

Using an encrypted format, the results shall then be transmitted to the tallying centres through a secure network in real-time. The public will be able to view the results online. Similarly, Media will have a dedicated connection to access real-time results as well.

According to ICT sources within the commission, the KIEMS have a unique in-built audit trail. The in-build audit trail enables the commission to collect all the kits and to retrieve records from the SD cards for any analysis at the end of voting. This in-built accountability tools implies that the process of voting can be subjected to objective scrutiny at any point in time after voting.
.  .  .  .

Clearly, much of what Chiloba and the IEBC described here just over two weeks before the election did not actually happen after the votes were cast and counted on election day.

Why?  Well, much of the explanation likely rests on the new information disclosed in the Registrar’s reports on the Forms 34A and Forms 34B and the IEBC ICT review in the Supreme Court litigation.  Other things were going on within the process than described.

What Carter Center actually said in Preliminary Statement: “Given that the tallying process is ongoing, the Center is currently unable to provide an overall assessment.”

From the Carter Center Preliminary Statement (August 10):  Carter Center Prelim Stmt of Vote Tally and Transmission of Results

For a Kenyan view, see “IEBC results: We’ve more questions than answers” writes Muthoni Wanyeki in The East African on August 22.