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US Ambassador Ranneberger moved to support “power sharing” as soon as the initial U.S. congratulations to Kibaki were withdrawn.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..
The Kenyan Ambassador to the EU accuses the EU EOM of violating a Memorandum of Agreement with the Government of Kenya governing its observation by releasing its Final Report this week. (I have not had a response yet from a request for a copy of the MOU from the EOM or been able to otherwise locate a copy–it is likely routine.)
The report has a fair bit of information on the immediate mechanics of voting this year, while noting that few of the recommendations of the 2013 EUEOM had been met in preparation.
Of the 22 recommendations made by the 2013 EU EOM, it appears that none of the five priority recommendations have been implemented, and only two have been fully implemented (related to a unified voter register and defining the duration of the campaign). The rest have been partially implemented, albeit minimally in some cases, or not implemented at all.
I do not have any particular comment regarding the voting itself having elected not to be there myself.
While observing that the new IEBC was appointed unduly late, in a climate of mistrust, the report does not addresses the context or even mention the “Chickengate” convictions by the Courts of EU Member the UK for bribes paid for previous IIEC/IEBC procurements, or the Government of Kenya’s failure to prosecute the recipients, for example.
I will be interested to hear more on the thoughts of others who were there.
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.
Events of the last few days are more twists, turns and wrenching associated with Kenya’s status as being stuck or frozen by the stolen election of 2007 and its aftermath, pending forward movement to truly realize a new system under the new constitution approved overwhelmingly in 2010, or back into a now-digitized/globalized version of a single party power structure based on elite-level tribal bargains.
Based on the 2013 election and Kenyan history, in the immediate run the continued retrenchment of democracy is surely likely, but we can hope otherwise. And most importantly, Kenyans can keep their eyes on the horizon and recognize that much of the work of getting Kenya (back?) to the state of democratic openness that was preceived to have existed in the early times after the defeat of KANU at the polls in 2002 will remain regardless of who is president.
And the vital task of acheiving a transparent and trustwothy, bona fide independent electoral commission must not stop with the immediate “fresh election” regardless of when it is or whatever limited progress is obtained through current NASA demands for “irreducible minimums”.
ODM and Wiper and other parties made a mistake by waiting until early 2016 to focus on forcing reforms of the Issaak Hassan “Chickengate” IEBC of the badly administered 2013 election. Even though agreement was obtained to replace the Commission with loss of life of protestors killed by police by mid-2016, the old Hassan Commission stayed in control until early this year, after budgets and plans (and some contracts apparently) were in place, assistance programs by the United States and others contracted–and apparently adjusted by demand of the incumbent ruling party.
The new Commission inherited Hassan’s staff and remains quite murky as to the extent that they are de facto independent enough to effectively manage and discipline that staff. The selection process was messy and murky and the Vice Chair of the Commission turns out not to have resigned her job with the UNDP but rather taken “leave” of undisclosed terms while serving. Are other Commissioners of uncertain independence from other players in administration of the elections? (I am not concluding that Dr. Akombe is not independent of the UNDP–just that there are unavoidable questions which neither the UNDP nor Dr. Akombe seem willing to address–nor Kenya’s media to take up.)
No incumbent president in Kenyan history has been found by Kenya’s election management body to have lost an election–certainly the opposition has always known it had an uphill battle to have real hope of winning, aside from the fact that the incumbents have strong support in their bases and were ahead by a few points in most polls as of late July. In this environment, the failure to achieve deeper reform of the old IEBC by early 2017 was probably fatal to a real chance to win all other things being equal.
The surprising and gutsy decision of the Supreme Court of Kenya to rule that the IEBC’s conduct was just too far beyond the pale to pass legal muster gave everyone another chance, but of course it did not change any hearts and minds of people who were never willing to risk of losing office at the polls in a free and fair vote.
The United States and other donors attracted a lot of published advice from its own employees and through indirectly supported sources like the International Crisis Group stressing the importance of transparency for trust building but elected instead to continue to stay the course of underwriting the ECK-IIEC-IEBC and publicly promoting its output to Kenyans without re-consideration of the risks and costs of non-transparency and undisclosed failures with the electoral management process, such as the alleged bribery in 2007 that warranted undisclosed US “visa bans” and the subsequent “Chickengate” bribes and the bogus procurements of technology that left Kenyans exposed again in 2013.
This is not rocket science. Kenyans who are increasingly divided by tribalism as their politicians offer and deliver less democracy and less other models of leadership, are more likely to accept and trust what they are openly shown and explained.
I will be prepared to more substantively address the 2017 vote/s once I get the documents I am due and expecting from my 2015 FOIA request about the 2013 election. Until then, we can still decide to do what we know can be most helpful to build trust if we want to.
Today the Carter Center Election Observation Mission released an additional report discussing briefly the findings and proceedings of the Supreme Court of Kenya in deciding the presidential election petition but primarily focused on the negotiations and preparations for the “fresh election” scheduled by the IEBC for 26 October.
There has been some public controversy and debate, as well as confusion, about the role of the UNDP in the funding and management of this years Kenyan election to a degree that was not apparent in the last two cycles. The UN is a big presence in the Nairobi and Kenyan economic and political scene, so it hardly surprising that their role in the overall outside democracy assistance program would come into scrutiny where things went badly and the election was annulled. Most recently there was an offer made by the IEBC to have the UNDP undertake ballot paper procurements, for instance, which was declined by the candidates. (I am not ready to wade into the thickets of the controversy about the fact that the most public face of the Commission itself other than the Chairman has retained her employment with UNDP in a leave status while accepting appointment from the President and taking office as an IEBC Commissioner in January and related matters,)
From an EU report at the beginning of the year:
The UNDP-led “Strengthening the Electoral Processes in Kenya Project” aims to strengthen Kenya’s electoral institutions, systems and processes in Kenya in view of the 2017 elections.
Following the EU’s support to Kenya during the 2013 elections, the EU is capitalising on the lessons learnt from that period to provide a better electoral support mechanism for future elections. The EU’s financial contribution to “Strengthening the Electoral Processes in Kenya” aims to develop stronger legal and institutional structures that will lead to transparent, credible and peaceful elections, as well as leading to more informed participation in the electoral process. In particular, we expect:
a strengthened institutional and legal framework for the electoral processes;
a strengthened participation of voters, parties and candidates in the electoral process with emphasis on women, youth and disabled
the delivery of more efficient, transparent and peaceful elections
a strengthened electoral justice and increased compliance with the electoral framework
The programme supports activities that cover the whole country. Beneficiaries of it include the Independent Electoral and Boundaries Commission (IEBC), which will be the largest recipient of the programme’s assistance. Other beneficiaries include Kenyan institutions and organisations involved in the drafting of legislation, dispute resolution between political parties, media regulation, women’s empowerment and security, including:
the Office of the Registrar of Political Parties
the Kenya Law Reform Commission
the Judiciary and Political Parties Disputes Tribunal
the Director of Public Prosecutions
the Police Service
the National Cohesion and Integration Commission
other government agencies including county governments
civil society (including women movements) and media
The EU is contributing EUR 5 million to a projected total basket fund amount of EUR 21,5 million (US$24 million). The other donors to the “Strengthening the Electoral Processes in Kenya” project are currently DFID and USAID; some other donors might also join. To date (as of January 2017) US$14.65 million has been raised. The basket fund became operational in the second half of 2015, and activities will last till the end of 2018. The implementing partner is UNDP, with support from UNWOMEN.
It is in fact very unfortunate that time has been running hard against the 60 day deadline for the “fresh election” necessitated by the failure of Kenya’s IEBC (significantly supported by the United States and, at least indirectly through the UNDP so-called “basket funding”, other donors) to conduct a lawful presidential election on August 8 as determined by the Supreme Court of Kenya.
With the passage of time things like the then-shocking torture/murder of acting IEBC ICT head on the eve of the election are no longer mentioned in such statements as today’s from the envoy group. Too long ago that murder (passing 60 days) and with no sign of progress or serious effort to solve the case we should of course “accept and move on” that it was simply an unfortunate coincidence (or at most one of those political murders that happen periodically in Kenya that are agreed to be ignored so that we don’t have to face the darker realitity of how “democracy” really works in such a pretty country). Of no relevance to the August 8 election or its rerun in the hands of the his suspened predecessor who got his job back when Msando was killed even though he had been earlier suspended as ICT director for refusing to cooperate in an audit.
Rather it is noted today that it is “too late” to replace staff hired under the removed Issack Hassan Chickengate regime or otherwise substantially reform the IEBC.
Longstanding CEO Ezra Chiloba doubled-down last week and signed (reportedly) a new (amendment??) with the controversially sole-sourced ICT vendor OT Morpho now owned by a US-based fund and a fund of the Government of France. Pretty much an “in your face” gesture toward reformers if true. [Update 4/17: The IEBC twitter feed has reported that the OT Morpho contract will be released – I gather this is confirmation of the reported new agreement but we shall see.]
Either the donors have lost all significant influence, if they had any, toward transparency and trust building at the IEBC or they are really gambling hard on selling whatever the IEBC in existing form–without meaningful reform–will offer up on October 26 and the seven days thereafter.
As for me, I think this is a bad gamble, both in terms of odds and because the known character of the other players at the table.
As an American who was involved in the 2007 fiasco from part-way inside and witnessed 2013, I would like to see my Government cease to help underwrite this IEBC as a matter of our own integrity and of our long term ability to provide some future positive influence to the future development of independent democratic institutions in Kenya.
The American dollars supporting through USAID this IEBC would be much better spent on urgent humanitarian needs (see the UNDP’s call for additional funds of more than $100M for Kenya famine relief).
It may be that NASA will throw in the towel and agree to go along to run in a “not so fresh” election without IEBC reforms. That is for NASA to decide. I just do not want my Government to interfere in that decisionmaking process unless we are willing to provide some independent assurance of transparency and support for fairness to all Kenyans (not just NASA) that the Government of Kenya cannot be expected to agree to unless we are willing to stand up to them in a way that I have not seen from us in 2007 or 2013.
The Supreme Court of Kenya’s long awaited reading of its full opinion on the presidential election petition this morning squarely hammered the discrepancies between the process requirements of the law and what the evidence showed happened.
The Court found explicitly, for example, that the affidavit submitted by the IEBC asserting that all of the tally papers had security features was contradicted by the documentary evidence eventually produced by the IEBC under order of the Court in the hearing.
The Judiciary website seems to have been down from before the announcement so I will have to wait to read the opinion.
The Court made clear that there would be no basis for it to uphold a similarly compromised process in a fresh election.
The ball is squarely in the “court” of the IEBC and its advocates and funders to grapple with the “contamination” and its causes to find a solution.
(On the submission of the Preliminary Statements of Election Observation Missions as evidence to bolster the defense of the IEBC, the Court said they could not be considered as they did not go beyond looking at the voting and counting at a sample of polling stations. This is good news in correcting one of the flaws from the original 2013 presidential petition litigation.)
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?
“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.