Election Litigation in Kenya: What is status of preservation and sharing of forensic evidence from KIEMS on Results Transmission?


Short answer is people involved are extremely quiet on this front.

On my end I had my periodic status call today on my 2015 FOIA request to USAID about records relating to our support for the IEBC in 2013, including the failed Results Transmission System. Nothing new since April.

This is part of what I wrote July 3:

According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.

Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. IFES will ensure this system is fully installed, tested and operational for the 2012 election. Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.

Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.

In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).

The 2017 Kenyan Supreme Court petitions are under a final seven day deadline of today.  [Update: NASA has filed a challenge Friday night in Nairobi, to my understanding joined by The Thirdway Alliance.  Do not know of others.]

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

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 Tursday 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.

[Updated 11 Aug] Kenya election updates 

My update is to just say Kenyan IEBC is not done with their job, but I’m done saying anything at all about this election process so far.  Since I’m not involved it doesn’t help to offer public commentary.

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.

Very bad news regarding Kenya’s election preparation on multiple fronts (updated)

Kenya’s IEBC Chairman announced over the weekend that one member of the IEBC technical staff had “gone missing”.  Reports indicated last contacts of 10pm Friday or 3:00am Saturday.  Today we learn that his dismembered body is in the morgue–I have not seen information yet on when he was murdered, when or by whom he was brought to morgue, etc.  (So far these details appear standard for a Nairobi politically related murder.  Normally the cases are unsolved and are subject to features years down the road in the major Kenyan dailies with important details after key suspects have died.)

The extrodinarily last minute testing of the KIEMS (“Kenya Integrated Election Management System”)  — crucial for a credible election because we know that the register has lots of dead voters and other problems –set for 3pm today has been cancelled/postponed due to the fact that the murdered staffer was leading this part of the election.

Meanwhile, the IEBC has announced that more than 20 million paper ballots from its highly controversial sole source contract are arriving.  This allows enough for each of the perhaps 5% dead voters on the register to vote, plus more than an additional 1 million extra ballots.  

Leaked documents publicized by the opposition confirm what seems to be otherwise clear from other official sources — that the KDF is being deployed by the Goverment (the same Secretaries and Ministries involved in the re-election campaign of their Commander-in-Chief per their public communications) for purposes of election security along with the civilian paramilitaries of the Kenya Police Service that were exposed to have been implicated in partisan election activity and in the Post Election Violence in 2007-08.

Parliament has not approved the integration of the KDF into domestic election security.  

We know from the Jubilee (ruling) Party vote to force the IEBC to accept a “manual backup” (substitute) in the event of a failure of the KIEMS that the government would have the votes to have authorized the KDF role had it elected to.  And speaking of that insistence on manual back up . . .

Frankly this stinks.

(UPDATE: Additional details reported by the Standard midday indicate body of Chris Msando in forest by local citizens Sunday evening; they called police Kenya Police Service whose officers took the body to morgue. This is contradictory to some other reports, as usual in cases of murder involving high politics in Kenya. US and UK have offered assistance to investigate what is apparently a clear case of torture and murder.)

(2nd Update: Chris Msando has been variously referred to as “Manager” and as “Acting Director” for the IEBC ICT. The previous ICT director was fired some weeks ago under a cloud. So the person being called a “staff member” in early reports is as a practical matter the most important member of the Commission’s staff other than the chief, Chiloba, who is a holdover from the old Issak Hassan commission.)

(3rd Update: “Uproar over Moses Kuria’s post on slain IEBC officer” has more details and part of the state of play in the campaign pending further information.  

The “simulation” of the KIEMS is re-scheduled now for Wednesday afternoon.)

Always “steady progress” – COMESA “elders” to observe COMESA member elections in Kenya and Rwanda

From a COMESA Press Release yesterday:

COMESA believes that elections play a pivotal role in societal transformation in the region and provide a footstall for entrenching democratic principles.

Premised on this critical role, Member States have continued holding periodic elections which have heralded a new dawn by signifying steady progress towards deepening and institutionalizing democracy in the 19-member bloc.

Nonetheless, COMESA is still dispatching teams of Election Observers to issue Preliminary Statements just after the upcoming elections in Rwanda on August 4 and Kenya on August 8, with further reports after 90 days.

Zimbabwean Ambassador Dr. Simbi Mubako will lead the team for Kenya to arrive 30 July.

Think I am too jaded?  Enjoy this:

The presidential elections in Rwanda follows the 2015 referendum that unanimously approved a constitutional amendment that allowed President Kagame to run for office in 2017.  The forthcoming elections are considered important in Rwanda’s socio-economic and political progress.

In the past years, Rwanda has made significant progress in consolidating its political stability, economic growth and development.  Furthermore, Rwanda has recorded major milestones in consolidating democracy through holding periodic parliamentary and presidential elections as stipulated in its legal framework.

Since 2008, COMESA has continued to support the elections process in Rwanda.  COMESA observed the parliamentary that were held in 2008, 2013 and the presidential elections held in 2010.

I am all for extra diplomats and elders from the region being in Kenya for the election to meet diplomatic needs that may arise.  But let’s not confuse this type of “intramembership” diplomatic obsevation with an independent election observation. 

[See U.S. and IGAD Statements on Djibouti election from last year, featuring Kenya’s Issack Hassan for IGAD]

Kenya vote: target turns from “will of the people” to “free and fair, peaceful and credible” to “fair, orderly, credible and nonviolent”

Old KANU Office

Solo 7–Kibera

In the 2013 Kenyan election John Kerry was the American Secretary of State, speaking to Kenya’s elections that year in his role as lead American diplomat.  The U.S. provided key funding as well as embedded technical support for the IEBC in that election, including funding for the failed procurement of an electronic results transmission system.

It was suggested that the election, in spite of a certain disarray and incomplete results, reflected “the will” of Kenyan voters–and was subsequently upheld by Kenya’s Supreme Court (with preliminary observer statements from the Carter Center and EU as evidence offered by the IEBC in litigating against the challenges).

Likewise as Secretary of State Kerry addressed Kenya’s 2017 elections during his official visits in 2015 and 2016.  The second quote above, “free and fair, peaceful and credible”, comes from Secretary Kerry in Kenya last year.  The new terminology for the 2017 vote, “fair, orderly, credible and nonviolent”, comes now from former Secretary Kerry, wearing a new hat as co-leader of the independent International Election Observation Mission being conducted by the U.S. based NGO, The Carter Center. (See Daily Nation 14 July “Ex-Secretary of State insists on fair election“)

Over the years I have written and noted the potential distinctions involved in the decision of international observers to suggest that a particular election “reflected” or corresponded to a standard labeled “the will of the people” on one hand, and on the other to label an election “free and fair.”

An overview and “gateway” is my post “An insider’s explanation of the difference between a ‘free and fair’ election and a ‘will of the people’ election — Kriegler deputy’s memoir“.   The issue is discussed in relation to the internationally supported South African election of 1994 discussed in the recent memoir referred, and on into 2007 and 2013 in Kenya, with Kreigler and IFES re-engaged in a different context.

See especially my post “Are free and fair elections passe in Kenya?“.

The most important point for Kenyans is that the 2010 Constitution adopts explicitly as law a “free and fair” standard.  Peace, order and nonviolence are good and important societal goals.  Many of us are skeptical that tolerating corruption or other substandard conduct in administration of elections is somehow a useful tool to serve peace, order or nonviolence (just as war, disorder and violence do not clean up the election process).

“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

The hardest job in Kenya . . .

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The new Kenya IFES country director has arrived in time to learn her way around for the August election, just as Kenya’s Independent Electoral and Boundaries Commission (“IEBC”) has thrown in the towel, again, on a crucial technology acquisition–and once again going with a “sole source” procurement with Safran/Morpho (as with the BVR kits in 2013) to save time since they are already late.

The technology problems will be all too familiar, of course, to Kenyans and others who were involved or closely observed the 2007 and 2013 elections, or were involved in writing up any of the many commission papers, evaluation reports, etc. associated with those misadventures.

Sadly, it may be that the die has already been cast for this year in that the IEBC Commissioners were not replaced until too late to have the requisite time on the job to adequately prepare for the election (a key recommendation from the 2008 “Kreigler Commission”). For the most part they have inherited the work of their predecessors and the staff they hired who made crucial decisions like planning a huge expansion of the number of polling places, while failing to address the corruption in the failed technology procurements or make adequate progress on replacements.

With the new Commissioners taking office, officials from President Kenyatta’s party launched a public attack on the U.S. election assistance effort which is being run by IFES, and singling out long time IFES country director Mike Yard, who seems to have been the one person with both the most longevity and the best reputation involved in process.  And then there were visa problems and other Government of Kenya directed disruptions.  I am sure its a coincidence but Mr. Yard took on a new challenge earlier this year as Country Director for Libya.  Thus, a new director arriving less than five months before the scheduled vote. (I arrived in Kenya roughly six months before the 2007 election and am still learning on a continuing basis things no one told me that I should have known about that election.)

Realistically, the job looks impossible as structured, even if there had been adequate preparation time because of the conflicts of interest that USAID has built into the the role.  Compounding the problems from 2007 and 2013, USAID chose to select one entity to provide the inside technical support for the IEBC as per the IFES role since 2001 with the ECK/IIEC/IEBC, to provide voter education and also to lead election observation.  Thus IFES is wearing both “insider” and “outsider” hats at the same time, when the contradictory responsibilities of working with and observing the IEBC are both hugely challenging and vitally important.

Of course this is all based on what is public to me as an interested American taxpayer–maybe USAID changed its mind and ended up restructuring all this on a non-public basis?

One other factor is that IFES does have some separate funding for 2014-18 work from the Canadian International Development Agency this time.

No incumbent president has been recognized by a Kenyan election management body as having lost a re-election bid.  Presumably the immediate foreign policy priorities of the United States in Kenya in August will be weighted to the stability of our long time “partner” Kenya.  As the State Department continues the process of consolidation of control of USAID as we have seen over the previous U.S. administrations in moving from the 2007 to 2013 now to 2017 election, it will be that much harder to for people handling democracy assistance at USAID to stand firm for the long term interests, and statutory and legal priority of the U.S. to support democracy in the face of competing claims from the diplomatic and defense constituencies within our government which will presumably have incentives to placate the incumbent.

Election observation has always been controversial in Kenya.  In the first multi-party presidential election in 1992, Ambassador Smith Hempstone, according to his memoir, recommended having NDI observe the election, anticipating an incoming Clinton administration.  President Moi, who used the Republican consulting firm Black, Manafort and Stone, refused to entertain NDI, writes Hempstone, but agreed to IRI.  In 1997 and 2002, the observation agreement went to the Carter Center, then to IRI in 2007 (that year USAID did not want to do an observation, as I have written, but Ambassador Ranneberger instigated having IRI observe), then back to the Carter Center in 2013.  Observers inevitably get criticized for being too critical or too lenient towards the Kenyan process, which has always been messy.

In my year 2007, the EU and the domestic donor-funded observers stood up initially to the ECK’s obvious irregularities, while IRI was initially neutered.  Eventually IRI released both its exit poll indicating an opposition win (August 2008) and a highly critical final report (July 2008).

In 2013, the domestic observation, ELOG, initially “verified” the incomplete “final results” announced by the IEBC but eventually released a significantly critical final report.  Similarly, the Carter Center provided key initial bolstering of the IEBC’s position in their preliminary report but issued a much more critical final report months later. See Carter Center quietly published strikingly critical Final Report from Kenya Election Observation.

In both those 2007 and 2013 elections, as in 2002, IFES worked inside the IEBC to provide technical support and did not have an “observation” role.  Bill Press, the IFES President, later testified to Congress that the 2013 election was a great success from the IFES standpoint because Kenya “did not burn”.  The terminology of the Kenyan constitution for a successful election is “free and fair” as opposed to “did not burn”.   Maybe I am just too much of a lawyer in how I look at these things, but I do not think we should have USAID help underwrite elections to a “do not burn” rather than “free and fair” standard to the the tune of $25M when people are literally starving to death in the neighborhood and aid budgets are being cut.

I do not want Kenya to burn, and I hope and pray that this year’s election is less violent than 1992, 1997 or 2007–and even 2013 when “only” 400-500 people were killed in politically driven violence in the pre-election months and only a few protesters were killed by police after the vote.  In general terms the reason that people die over elections in Kenya is because they are governed by killers, not because Kenyans aspire to actually have their votes counted honestly and openly.

See: It’s mid-June: another month goes by without Kenya’s election results while Hassan goes to Washington [with link to video] June 13, 2013

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Counting in Nairobi suburb