Brand new from Palgrave, Westen K. Shilaho’s Political Power and Tribalism in Kenya. Reading now.
Brand new from Palgrave, Westen K. Shilaho’s Political Power and Tribalism in Kenya. Reading now.
The good people at www.NeverAgain.co.ke have given us an edited version of the concluding argument in the Supreme Court from Julie Soweto, counsel for petitioners Njonjo Mue and Khelef Khalifa: Kenya’s Supreme Court judges have a choice between upholding the beacon they raised or apologizing for doing the right thing:
We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.
The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.
We are going to demonstrate that IEBC and the chairperson simply did not do this.
. . . .
Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.
. . . .
Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.
Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?
IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.
Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?
That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.
What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.
Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.
Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.
. . . .
Catch the webcast, live Thursday morning 9:30-11:00 EST:
“Raila Odinga on the Kenyan Elections” with Amb. Mark Bellamy at the Center for Strategic and International Studies in Washington.
The link will also take you to the video for CSIS Africa programs addressing the Kenyan election in June, July, August and September.
Meanwhile, the AP has a story out this afternoon widely re-published in American newspapers: “After Kenyan vote drama, successionist talk hits the mainstream“.
The succession concern may likely have resonance in Washington given U.S. interests, although my sense is that the economic boycotts are the most salient message in Nairobi. During the PEV period following the corrupted 2007 election, ODM backed off on threats of such economic boycotts which seemed risky as unprecedented and perhaps perceived to be “over the top”.
Vogue gives us “Three Nairobi Fitness Excursions Prove There’s Plenty of Life Beyond the Safari” for Americans who want to play around the city after their “humanitarian” trip to Kakamega from the U.S.
And the Carter Center has released a statement on the October 26 re-vote mirroring the State Department’s call for “national dialogue”: “Repeat poll polarized Kenya: Carter Center” headlined the Daily Nation.
Update: A Thursday story in The Star reports that “British Army may pull out of Kenya, decision by end of month“. The issue is KDF approval for leases of private land in Laikipia, the established practice, as opposed to a restriction to using only Kenyan government property.
In his sermon, Archbishop Welby said reconciliation was the only way that the country could retain its status as a model nation for Africa, and that disagreements can only be sorted out through understanding.
“Kenya has been a good model of peace and reconciliation across Africa,” he said. “Reconciliation is a supreme gift of Jesus, and is so costly it caused Jesus to die on the cross.”
(From the Sunday Nation, “Talks in the air as Uhuru, Raila meet” featuring the visit of the Archbishop of Canterbury to Nairobi.)
As a Christian, I embrace the message of the Archbishop on the value and centrality of reconciliation for Kenyans, as for the rest of us. I am just not sure that the purpose or motivation needs to involve further taking up the burden of being a “model nation” as that term has been used. Kenyans need reconciliation among themselves, for themselves–really to become a nation in a more meaningful sense than they are now.
The history and immediate circumstances of Kenya are rather specific. The spiritual and temporal challenges of reconciliation in Kenya certainly have a fair bit in common with those faced by Americans. I am sure others elsewhere, in places that I have not lived, including in various other nations on the African continent have substantial commonality in their experiences, needs and circumstances.
It is natural–almost reflexive and inevitable perhaps–for leaders from the UK to call on Kenya’s leaders to bear the burdens of being exemplars for the region. And are Kenya’s elitemost not to able to be motivated by the extra status of ruling the country that is recognized as a sort of head boy for the whole neighborhood? To me this sort of thinking has been a fixture of Anglo American establishment orthodoxy toward Kenya and effectively served the interests of Anglo American foreign policy as the current relationships were worked out during the 1950s, ’60s and ’70s. While it has arguably worked out better in some important respects for quite a few Kenyans than many possible alternatives might have, it is decidely shopworn and insufficient now for the future.
The cross of being a “model nation” has always been in another sense the burden borne by most Kenyans in carrying on their backs in parade profoundly corrupt and frankly greedy “prefects”. Kenyans have more valid dreams than this. In reality the Kenya of Kenyatta/Moi/Kibaki/Kenyatta (and the rest of the usual immune suspects) is not something that could (or should) be replicated anywhere else, and it is not even a viable model for Kenya on into the 21st Century. There are too many more people without jobs or enough to eat, with many many more coming.
And let us be clear that a specific cost of being used as a “model” by outsiders: truth. One of the main reasons Kenyan elections are so bad but so uniquely expensive is that we pretend that they are better than they are, to serve the idee fixe of the model. We still cannot come to grips with talking openly among ourselves even about our role in the disaster of 2007, to go along with our role in mitigating the crisis in 2008-10.
The Cold War is long over and the Anglo American orientation to Kenya as it evolved up into the 1970s might well be due for a serious refresh, especially with more aggressive Chinese and French mercantilism offering competing opportunities for Kenya’s rentier class and Western technology, along with global oil proceeds routed through the Gulf Monarchies greatly expanding the reach and toxicity of militarized jihadist ideology since the early days of al Qaeda activity in East Africa more than twenty years ago now.
Regardless, the United States and the United Kingdom are not going to be leading the reconciliation of Kenyans, much less any of the other outside influencers. We can provide moral support or detract from opportunities by supporting an inadequate status quo.
In the case of the United States we all know enough now about Donald Trump to know that America will not have anything along the lines of foreign policy in any traditional sense during his presidency. This means overall inertia within the military in an expanding role and within the bureaucracy in other areas in a receding role. It also means a greater latitude for non-state actors such as the aggressively “libertarian” billionaires who helped make Trump president, such as the eccentric quant fund mogul Robert Mercer who will be of note to Kenyans through his role as an investor in Cambridge Analytica of Kenyatta’s 2013 and 2017 campaigns.
Trump has explained that it is not necessary to fill many of the policy and other positions in the State Department because he himself “is the one that matters” for policy. Presumably in the case of a crisis in Kenya cataclysmic enough to require decisions on his part regarding U.S. policy, Trump would be inclined to rely on the Pentagon. Otherwise perhaps he would also reach out to friends who have business interests as he referred to in his lunch with African leaders alongside the UN General Assembly.
Trump and his cronies aside, if Kenyans are able to find ways to reconcile and seek specific support from the United States, they will find many Americans including even within Congress who will wish to be of assistance for the reasons that we otherwise wish to help with the needs of Kenyans for food and medicine, for instance.
In first instance , however, Kenyans are in the same boat as everyone else and have to decide how they value reconciliation and love frankly, versus greed, power, hate, heirarchy and other alternative priorities.
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”
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.
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
- the Parliament
- 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.
[Update: Here is an Oct. 3 Daily Nation story on the status of negotiations and demands among Kenyan politicians and Western diplomats: “Envoys threaten travel bans to politicians derailing poll plans“. The International Crisis Group meanwhile offers a good brief: “How to have a credible, peaceful presidential election in Kenya“.
The independent European Union Election Observation Mission issued a new 3 October statement saying “decisive improvements are still achievable if Kenyans come together in a constructive manner” while decrying excessive demands and proposed law changes and with confrontation from both sides.
And to refresh the memories of the envoys and candidates here are the September 14 recommendations of the European Union Election Observation Mission for reforms ahead of the election re-run.]
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.)
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?