Nairobi’s Star publishes extraordinary story using SECRET 2009 Cable about Amos Wako corruption issues published by Wikileaks in 2010 to explain U.S. visa ban and designation

Read here from The Star: “What Ranneberger told Washington about Wako on corruption”.

Update Nov. 19, see the follow-up: “10 big names join Wako on US travel ban“.

When Wikileaks first published the mass of stolen State Department cables in late 2010 while Michael Ranneberger was Ambassador to Kenya The Star to my recollection did not write any stories from them–including about this 2009 cable, classified SECRET, on the Amos Wako issues. Of course it was more timely then and Wako was still serving as Attorney General.

The Star and The Standard both stayed away from direct coverage of material from the leaked cables, while The Nation did a small number of Kenya stories–not including this Wako subject matter–before quickly backing off.

The most topical of those for me back in 2011 was a Nation story revealing that in early 2008 the US had issued undisclosed (and unknown to me) visa bans against three members of the Electoral Commission of Kenya based on substantial evidence of bribery. The State Department has never to this day acknowledged knowing about the bribery at the ECK in the 2007 election and the publication of such stories in the Nation quickly dried up. (I was told of ECK bribery by another diplomatic source in January 2008.)

Back in the States in my job in the defense industry (with my security clearance) I was told by a friend in the Kenyan media that I had been “sweetly vindicated” on my public contradictions with the Ambassador in the New York Times and otherwise about the 2007 election but the “Wikileaked” cables were not available to me due to the obligations of my security clearance. Readers of this blog will know that I started the process of requesting related information through the Freedom of Information Act in 2009, more than a year before Wikileaks hit, and that I have received released versions of some of the same Cables that Wikileaks published unredacted.

I learned in real time that Ranneberger expressed active displeasure with The Star for publishing a story in February 2008 on the leaked USAID/International Republican Institute exit poll showing an opposition (Odinga) win in the December 2007 election, so I always assumed that it was likely that the Kenyan newspapers received diplomatic encouragement not to publish independently from the stolen cables.

Clearly the Trump Administration has had quite a very different approach with Wikileaks than the Obama Administration did back in 2010 and Ranneberger is now retired from Government himself and working as a consultant and lobbyist looking, among other things, to influence the Trump Administration. So lots of things have changed aside from Wako moving to the Senate from the Attorney General’s office and having a leading role in the current Building Bridges Initiative.

[I will add links to my previous posts, but wanted to go ahead and get this up.]

See “Part Seven — one last FOIA Cable on the 2007 exit poll“:

. . . .

The quest for accountability to Kenyan voters has remained unanswered sadly.  A news story in the Daily Nation in 2011, in the final item on my chronology of links to coverage of the Kenyan election, reports from an alleged leaked cable that ten days before this February 18, 2008 meeting at the Ambassador’s residence, the State Department issued “visa bans” against ECK members based on evidence regarding bribery–but did not disclose this circumstance, or the evidence, at this [Feb 18] meeting (I checked with a participant).  We, the United States, made clear that we were willing to step up financial and rhetorical support for reforms in Kenya–such as the new constitution–under a deal in which the new Kibaki administration shared power with the opposition under an Kofi Annan-brokered bargain–but we brushed aside the issue of the fraud in the election.

Kenya election vote counting Westlands Nairobi

Kenya Senator Amos Wako, former longtime Attorney General under Moi and Kibaki, gets US “public designation” for involvement in corruption and a second US “visa ban”

Secretary of State Pompeo released a press statement today announcing a “public designation” by the United States of former Attorney General Amos Wako, along with his wife and son, for evidence of involvement in significant corruption, seemingly from his time as Attorney General. Wako served during both the Goldenburg and Anglo Leasing corruption scandals.

Recent news finds the successful Goldenburg scam architect Kamlish Pattni obtaining a court judgement for additional funds from the Government relating to incompetent prosecution endeavors against him. Also we read this week that more than Switzerland has been holding frozen funds related to the Anglo Leasing scandal which have not

The previous visa ban on Wako under U.S. Presidential Proclamation 7750 of 2004, was legally confidential, but was announced by then-Ambassador Michael Ranneberger in a Tweet in November 2009. Wako publicly acknowledged the ban for alleged failure to cooperate with reforms in the wake of the Post Election Violance following the 2007 election and announced he would sue to have it lifted. It is unclear when that ban was lifted, although it must have been a some point. As of December 2015 then-Ambassador Robert Godec told The Standard that there were several Kenyans barred from the US under Presidential Proclamation 7750.

In early 2008, according to a Daily Nation report said to be from Wikileaks, the US banned three Kenyan member of the Electoral Commission of Kenya based on evidence of bribery, but the US has never made any type of disclosure of that action or the underlying Election Commission bribery issue although I was told separately of ECK bribery by non-US diplomatic sources in the course of my work for the International Republican Institute during the Post Election Violence.

Reviewing the 1992 Election Observation Report from the International Republican Institute for my last post I noted that Attorney General Wako was accused by IRI of being “responsible for egregious pre-election irregularities related to the election framework” along with many of the District Commissioners.

As Kenya Turns: Kalenjin radio features return of former ICC-indictee Sang at Kenyatta and Ruto-owned station

Ruto Hires Former ICC Co-Suspect Sang For His Kalenjin Radio Station, Kenyan Report, June 5, 2019

“Former Kass FM presenter Joshua Sang is set to make a comeback to the airwaves after landing a job at Emoo FM, a station owned by Mediamax Network Ltd.

Even though both the Kenyatta family and Ruto hold substantial stakes in the DMS Place-headquartered Mediamax Network – sources claim Ruto is the hitherto biggest shareholder even as he aims to consolidate media support around his 2022 ambitions.”

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

 

 

“Achieving USG Goals in Kenya’s Election” (FOIA Update): Ranneberger April 2007 cable shows shift in US approach to upcoming Kenya election to “build capital with the government”

Kenya 2007 Election campaign posters “Kalonzo Musyoka for President” on duka Eastern KenyaA breakthrough on unraveling the story of Kenya’s stolen 2007 election:

This is from my original 2009 Freedom of Information Act request to the State Department for documents related to the 2007 Kenya exit poll I managed as Chief of Party for the International Republican Institute’s USAID funded polling program.

Just after the next election in Kenya, in March 2013, the State Department made its original release of documents to me on this 2009 request, as I discussed in my post here at the time: Africa Bureau under Frazer coordinated “recharacterization” of 2007 Kenya exit poll showing Odinga win (New documents: FOIA Series No. 12)

At that time State withheld one document in full on the basis of “predecisional privilege”; I eventually got that document released on appeal, and heard no more.

Yesterday, I checked in with the State Department FOIA web library to see if there was anything new on Kenya from other requesters and my search showed that an additional document had been published online in 2017, unbeknownst to me, in response to my 2009 request. It is an April 24, 2007 cable titled “Achieving USG Goals in Kenya’s Election” over the signature of Ambassador Ranneberger to the Secretary of State for the Africa Bureau and the Bureau of Intelligence and Research (INR) in Washington. “Sensitive But Unclassified” and released with no redaction. No explanation as to why this document, which pre-dates all of the others released or identified to me in 2013, was published online on April 18, 2017; if it was mailed to me at some point I did not receive it. Nonetheless, I am glad to finally have it (although I wish I had known about it when I published my June 2017 summary story on “The Debacle of 2007 for The Elephant).

The big significance of the cable for me is that it documents that the State Department had in fact changed its approach toward Kibaki and toward the opposition between 2005 and April 2007. This was my perception “on the ground” during the campaign, but I had no explicit documentation until now. It also confirms that as of April, the plan was for a diplomatic observation of the election by State Department personnel only and not an International Observation Mission by the Carter Center as recommended by a 2006 USAID evaluation (referenced in the cable) or by IRI as initiated at the behest of the Ambassador that summer.

Likewise, the cable includes one more recitation that the purpose of the exit poll, formally, was to deter and oppose election fraud through an “independent verification of election results”, not to be “a training exercise never intended to be released” as asserted by Ambassador Ranneberger on a State Department webchat in March 2008 after the quashed but leaked poll had become a “hot potato”, and supported in State Department talking points prepared and circulated in response to media reporting in 2008 and 2009.

Unfortunately for me, when I took over the USAID polling program for IRI in June 2007, the program was operating under a Cooperative Agreement from 2005 that expressed the old policy of being disappointed in the corruption and underperformance within the Kenyan government as reflected in the Anglo Leasing security procurement frauds, the Standard Raid and Artur Brothers, etc. No one at USAID or IRI intimated that the State Department had changed policy and I had to figure it out for myself on the fly.

Here are key excerpts from the cable as published:

3. (SBU) Positioning: Some civil society leaders and opposition members of Parliament have complained recently that the U.S. mission is not close enough to the opposition. In fact, we have close contacts with the opposition from the top levels through the Ambassador to to all levels. However, the opposition longs for the days in 2005 when Foreign Minister Tuju publicly condemned the U.S. mission for supposedly desiring “regime change” in Kenya. They also cite the period in the 1990s when the U.S. mission openly sided against the Moi administration in favor of the multiparty democracy movement. However, the present government, for all its flaws, was elected under conditions widely considered free and fair. As for its indulgence of corrupt members of the political class, we note that the opposition has taken no disciplinary action against notoriously corrupt members within its own ranks. Corruption plagues the entire political class. We will continue to publicly condemn it as a major impediment to Kenya’s progress. We will continue to work closely with the Kibaki administration to achieve USG goals, but we will continue to assert ourselves as completely neutral concerning the election itself. Our strategy is to build capital with the government to be spent as needed over the course of the campaign to address critical electoral issues. We started that process through emphasis on the U.S.-Kenya partnership (reftel B). While we will be strictly neutral among the contending political parties, we will be fiercely partisan in support of the democratic process.

. . . .

8. (SBU) Electoral Reform: As reported in reftel B, electoral reform continues to be a hotly debated topic in Kenya. There is a consensus among all political parties and civil society that reform is required. There are no prominent defenders of the status quo. However, there is no consensus on the scope of reforms and the particulars of those reforms. Since the 2002 general election and the 2005 referendum on the draft constitution were both held under the present electoral system and were deemed free and fair, and since Kenyan society is adequately debating electoral reform, we see no reason for the USG to enter the fray. However, we have urged on all parties a spirit of compromise and an emphasis on the longterm best interests of the nation rather than short term electoral advantage. An opposition leader recently threatened a boycott of elections if his party’s electoral reform demands are not met. We made it clear to him that such intemperate language is not constructive and that boycotts are not acceptable. He stopped issuing boycott threats.

. . . .

– Public Opinion Polling: The International Republican Institute began implementing a public opinion program in 2005. The program seeks to achieve two results: increasing the availability of objective and reliable polling data; and providing an independent source of verification of electoral outcomes via exit polls. These results make an important contribution to elections and political processes. First, genuine free and fair elections require that citizens make informed choices. The polling data adds to the objective data available to citizens on key electoral issues. Second, the exit polls provide an independent assessment of the accuracy of the official electoral results, thereby supporting the assessment of the credibility of Kenyan electoral processes.

This program also enhances democratic political parties by enhancing the likelihood that candidates base their platforms on the key issues and concerns of their constituents, evidenced in the polling data, rather than the traditional focus on ethnicity and personalized political wrangling.

2007 Kenya election Kibaki billboard

I will discuss the context and layers of meaning in this “new old” cable more in the near future.

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

“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 simple truth of the allegedly “contested” Kenya 2007 exit poll–what IRI reported to USAID (FOIA series part 14, War for History series part 19)

Raila Odinga has a couple of times recently made conspicuous public mention of the Kenya 2007 IRI/USAID/UCSD exit poll results identifying him as the winning vote-getter, including in his speech at the tenth anniversary of the founding of the Orange Democratic Movement party a few days ago, as well as a significant discussion in his autobiography.

Even a year-and-a-half after the Kenyan election, in July 2009, Kenyan Ambassador to the United States Peter Ogego said at the National Endowment for Democracy in Washington that it was important to get to the bottom of the situation with the U.S.-sponsored exit poll indicating an Odinga rather than a Kibaki win.  The late Congressman Donald Payne, then Chairman of the House Foreign Affairs Subcommittee on Africa said at the same event that the poll should have been published sooner and that not releasing it had been a mistake, although IRI, he thought, had a “good reason” for not releasing it initially.  This is the basic structure of what actually happened, contra what IRI claimed in a March 29, 2009 “rebuttal” to the New York Times investigation. (My point here is still not to berate IRI for continuing to publish this defamatory material worldwide, but I have sadly come to realize that many people seem to have been, surprisingly to me, actually misled by at least some of it.)

On Monday, January 14, 2008 the International Republican Institute’s Coalition for Electoral and Political Process Strengthening (CEPPS) manager submitted by email to USAID at 6:25pm our formal Quarterly Report on the Kenya polling program.  The program had begun with an exit poll for the 2005 constitutional referendum and was scheduled to end with our final pre-election public opinion survey in September 2007, but an amendment that September added the exit poll for the 2007 general election.

Here is this January 14, 2008 report as released under the Freedom of Information Act:

CEPPS IRI Kenya 8038_Oct-Dec 2007

In the report, we at IRI wrote:

Implementation of the December 2007 General Elections Exit Poll
IRI initiated discussions on the exit poll to be conducted during the December 2007 general elections. IRI reviewed the survey instruments, deployment plans, and schedules. Discussions between IRI, USAID, and the local polling firm, Strategic Public Relations and Implementation of the December 2007 General Elections Exit Poll
Research (“Strategic”), took place. Researchers from the University of California at San Diego also partnered with IRI to advise on the sample design, methodology, and data analysis, which they are using for independent studies on polling.

Training of Researchers
In consultation with IRI, Strategic conducted training sessions for the researchers collecting exit poll data. As with the previous polls, Strategic trained a number of researchers, who later deployed to the field as trainers of trainers (TOTs) to identify and train research assistants that would be used to collect data.

The training reviewed field resource management techniques, sampling, and interviewing techniques, as well as training to ensure that all staff had a good understanding of the questionnaire. The questionnaire was then pre-tested in various constituencies of Nairobi. The interviewers later met for a debrief and assessment of the pre-test before deploying nationally.

Data Collection

The poll was fielded on election day in Kenya, December 27, 2007.  A group of 2,887 researchers from Strategic deployed in teams to 175 of 210 constituencies, covering all eight provinces of Kenya.

The interviewers were expected to carry out interviews approximately 100 meters from polling stations.  The interviews were limited to people that had just voted, and the administration of the questionnaire varied from less than five to seven minutes.  To ensure the validity of the sample, between 15 to 25 interviews were conducted at selected polling stations, and only every fifth voter was asked to participate.  Strategic supervisors accompanied researchers to ensure the accuracy of reporting on a number of questionnaires.  Researchers relayed immediate results to their direct supervisors, who then called in to Strategic’s data processing center in Nairobi.

Challenges

During the implementation of the poll, researchers encountered certain challenges, such as the inaccessibility of some areas due to poor roads; poor network coverage; and hostility from polling officials and respondents.  In one instance, a researcher’s questionnaires were confiscated by a polling official.  However, these issues did not significantly affect the data collection exercise.  (emphasis added).

Data Analysis

As data was collected, it was immediately relayed to Strategic headquarters for compilation.  However, data analysis for the exit poll was still ongoing through the end of this quarter. (through December 31)

Earlier that Monday the McClatchy newspapers ran Shashank Bengali’s story “Kenyan president lost election according to U.S. exit poll”. 

Continue reading

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

4292493510_a3a02344a7_o The successful prosecution of Smith & Ouzman, Ltd. and two of its officers by the U.K. Serious Fraud Office for paying bribes to Kenyan election officials to obtain contracts with Kenya’s Independent Electoral and Boundaries Commission (IEBC) should be a wake-up call in Washington.  Smith & Ouzman Chairman Christopher John Smith and Sales and Marketing Director Nicholas Charles Smith were sentenced last week and sentencing of the corporation is upcoming.

Ironically, perhaps, “capacity building” and procurement systems, along with the subsequently abandoned electronic results transmission system, were touted by U.S. Ambassador Ranneberger as features of the U.S. pre-election support in Kenya in 2007:

* “Developing the capacity of the Electoral Commission of Kenya (ECK) lies at the  heart of our strategy.  The USG funded International Foundation for Election Systems (IFES) has been providing support to the ECK since late 2001.  Activities focus on providing appropriate technology for more efficient and transparent elections administration while improving the skills of the ECK technical staff.  This support additionally includes capacity building and technical assistance to support election administration.  Technical assistance includes computerization of the Procurement and Supplies Department, which is responsible for printing and distributing election materials.  Assistance will also support implementation of the ECK’s restructuring plan, strengthening logistics capacity, and accelerating the transmission and display of results.”

From “Lessons for Kenya’s 2012 elections from the truth trickling out about 2007-New Cables From FOIA (Part One)” quoting a December 14, 2007 Ranneberger cable describing U.S. preparations for the Kenyan election.

For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC.  Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”   “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013.  See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.

For a detailed narrative and links on the U.K. Serious Fraud Office case, see Corruption Watch-UK/Trial Monitoring: “Chickens come home to roost: the Smith and Ouzman African bribery case”:

The most serious allegations relate to 7 contracts with the IIEC in Kenya between 2009-2010, worth £1.37 million, where S&O made unusually high commission payments of between 27% and 37% of the contract price. Part of prosecution’s case was that the commission of £380,859 over 18 months paid to the agent, Trevy James Oyombra, was exorbitant, and clearly designed to include payments for officials.

The contracts in Kenya included ballot papers and voter ID cards for By-Elections, 18 million voter registration cards, Referendum ballot papers, and other products relating to elections, such as card pouches, OMR forms, ultraviolet lights. It was a feature of several of these contracts that the S&O subcontracted out the printing work to other companies, in one case to a Chinese company that delivered the goods for less than half the cost of the contract price.

This raises questions about whether S&O were compliant with procurement rules and whether it compromised the security and integrity of the electoral process by subcontracting.

Additionally, on several contracts, S&O delivered significantly less papers than they were contracted to do raising the question of whether the integrity of the electoral process was compromised. It was also a feature of some of these contracts that prices were inflated significantly after award of contract. In all the contracts, the alleged bribes were paid for by the Kenyan tax payers, as the cost of commission was reflected in the contract price.

The specific contracts were as follows:

  • June 2009 – Shinyalu and Bomachoge By-Election. S&O were to provide voter ID cards, and ballot papers – although in the end they provided only 142,000 papers against the 200,000 ordered.
  • January 2010 – 18 million voter registration cards. Once S&O had been awarded the contract they subcontracted the production of half the forms to another company.
  • March 2010 – contract for electors’ card pouches which S&O subcontracted to a Chinese company who delivered them for less than half of the contract price.
  • May-July 2010 – three different By-Election ballot paper contracts (South Mugirango, Matuga and Civil By-Elections) – where the contract price in each case was increased substantially (sometimes by 50%) after award of contract to permit bribes to be paid. The agent advised S&O against providing “chicken” to visitors to their factory in 2010 as there were other officials not from the IIEC who he said they shouldn’t give “the wrong picture” – undermining the defence’s argument that the company was just doing things the “African way”.  Significantly the company again delivered less quantities of ballot papers than were required in each of these three contracts – in the case of the Civic By-Elections some 40,000 less than ordered.
  • July 2010 – a contract to provide 14.6 million Referendum Ballot Papers in which S&O worked out an uplift per ballot paper to factor in the bribery.
  • July 2010 – 1.5 million OMR correction forms and 1000 nomination forms in May.
  • July-December 2010 – ultra violet lights and other Parliamentary and Civil Ballot Papers.

Electoral officials at the IIEC were on several occasions described by the agent, Trevy, as trying to make money before they left the IIEC and went back into government. The agent described the officials at on stage as anxious and “broke”, and “they are desperate for the chicken”. The agent also said that officials told him that S&O needed to “be discrete since all peoples eyes and the government intelligence are watching their every move even on the phone to ensure transparency”.

The Kenyan officials named in court as recipients of payments were as follows: IIEC: Kenneth Karani (chief procurement officer); David Chirchir (IIEC Commissioner); James Oswago (IIEC Chief Electoral Officer); Dena; Kennedy Nyaundi (Commissioner); Gladys Boss Shollei (Deputy CEO); Issack Hassan; Hamida, Tororey and Sang.

Several of these officials are still in government: David Chirchir is current Energy Minister in government, and Issack Hassan is the current Chairman of the Independent Electoral and Boundaries Commission (IEBC) which took over from the IIEC.

The scope of the successfully prosecuted bribes to Kenyan officials, in particular the Kenyan Interim Independent Electoral Commission, now Independent Electoral and Boundaries Commission, was such as to suggest the corruption was not unique by time or geography.

Although USAID, as referenced in the State Department cable quoted above, has provided millions for the operations of the Electoral Commission of Kenya and its successors on a regularized basis since embedding IFES in the Electoral Commission of Kenya, ECK,  in 2001, I do not know whether there was any direct U.S. funding, or U.S. funding through a “basket” administered through UNDP or otherwise, implicated in the specific acquisitions involved in the prosecution.  At the least, given the level of U.S. funding for the Kenyan elections through this time period, the U.S. indirectly underwrote the ability of the Kenyan election officials to corruptly overpay for those things the U.S. was not helping to pay for.

The time period during which the offenses at issue in this U.K. prosecution occurred was 1 November 2006 through 31 December 2010.  Also during this time, for instance, IFES awarded  a more than $3.4M competitive procurement for USAID to Smith & Ouzman for polling booths for Sudan’s National Election Commission for 2010 elections.  Although there may be nothing at all irregular, it is worth noting that Smith & Ouzman has generally been identified as a “printing company” and its election related products and services marketed on that basis.

From a 2008 IFES election materials “buyer’s guide”:

Smith & Ouzman, Limited

www.smith-ouzman.com
Brampton Road
Eastbourne, Sussex BN22 9AH
UNITED KINGDOM
Contact: Christopher Smith, Managing Director
Tel: +44 1323-52-4000
Toll Free: 0800-298-2911 (UK only)
Fax: +44 1323-52-4024
elections@smith-ouzman.com

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“The War for History” part eight: “The way not forward; lessons not learned” from Kenya’s failed 2007 election assistance

Here is the contract language requiring a Final Report from the Cooperative Agreement for the USAID – IRI Kenya polling program starting with the 2005 Referendum Exit Poll and culminating with the 2007 General Election Exit Poll:

FinalReportI finally learned last month from my March 2013 Freedom of Information Act request to USAID that the required Final Report was never filed.   Eventually getting to the truth of this involved a significant amount of “beating around the bush” and a previous 2009 FOIA request from the University of California, San Diego that should have disclosed all of the reporting–but to which USAID replied only after two years and then by producing only a copy of this Agreement itself without any of the rest of the contractual documents.

So ultimately there is no explanation in the reporting as to how the 2007 exit poll went from successful in a January 14, 2008 quarterly report from IRI to USAID, to “invalid” in IRI’s February 7, 2008 global press release, and then back to successful months later with public release of the results contradicting the Electoral Commission of Kenya.  Nor the impact of this discrepancy on the overall effectiveness of this 2+ year $570,000 democracy assistance polling program or the overall multimillion dollar U.S. support effort for the 2007 Kenya election.

Lessons from an accurate accounting of what really happened with U.S. assistance for the disastrously failed 2007 election should have been reckoned with in preparing for 2012-13. Unfortunately, in 2013 we had initial reporting of the USAID funded parallel vote tabulation with very limited transparency and seemingly ad hoc communications, and an initial USAID funded Election Observation report offering positive assurance for the reliability of the IEBC’s announced result, only to be quietly contradicted months later by the final Carter Center report.

The biggest problem in 2013 was the catastrophic failure of the Electronic Results Transmission system–the system that was established in Kenya’s election law to provide for the conveyance of the results from the polling station–the only place where the paper ballots are actually counted–to the IEBC.  Sadly, this was directly prefigured by what happened with the similar, if less ambitious, Electronic Results Transmission system–also funded by USAID through IFES and the UNDP–in 2007.  In 2007 the Electoral Commission of Kenya simply voted in December to shelve the computers and not use them, thus creating the opportunity for the Returning Officers to turn off their phones and drop out of the way.

In 2013, we had the spectacle of highly dubious procurement practices by the IEBC with a last minute attempt–or so it was presented–to roll out the technology, even though implementation was clearly not ready.  The system was then shut down by the IEBC, except for the visual graphic steadily broadcast for days showing one candidate with an “early” lead [simply meaning some votes were included and most weren’t] and hundreds of thousands of spoiled ballots that did not turn out to exist.

A source confirmed for me what we all saw–that the IEBC did not have a meaningful backup plan to handle custody and conveyance of the paper forms for the polling stations where the votes had been counted when the transmission system was shut down.

Prior to the election in 2007, the U.S. Ambassador was reporting the electronic transmission system under IFES along with the IRI exit poll as American assistance efforts to support a fair election.  Although my FOIA requests have not been directed at that issue specifically, the results transmission system appears to have dropped off the Ambassador’s list without explanation around the time it was shelved and so far as I remember this issue did not get scrutiny in the media at the time.

The Kreigler Commission report stressed the crucial nature of results transmission and much was made of this in drafting of the new election laws and the talk of preparations and assistance for 2013, but the ECK refused to produce the minutes of its action shelving the 2007 system (or any of its other minutes) and the Commission reported on to President Kibaki and then the Kenyan public without actual answers about what happened in 2007.

See “Didn’t we learn from the disaster in 2007? Kenya does not need to be anyone’s model anything; it needs truth in its election”