Tag Archives: EU

Did the competing election crisis triggered by Benazir Bhutto’s assassination on the morning of Kenya’s 2007 vote contribute to initial missteps in US response to fraud?

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I decided to write this post to follow up an exchange on this topic on Twitter triggered by the 14th anniversary of the assassination of Benazir Bhutto as she campaigned as opposition leader in Pakistan.  I struck a nerve with some Kenyans. The point is not to create excuses but rather as I have always done, to try to understand why things happened as they did so that mistakes become learning tools.

The question is one that was always in the back of my mind but no one has ever raised it with me, nor have I heard it discussed.  I have known over the years, and it should have been obvious to any acute outside observer, that there were differences of opinion within the State Department as to the proper policy response to Kenya’s 2007 election and it seems that different officials at different levels and times took different approaches.

Kenya election State Department declassified cable Condeleeza Rice Javier Solana power sharing Mwai Kibaki Rail

Kenya election State Department declassified cable Condeleeza Rice Javier Solana power sharing Mwai Kibaki Rail

Kenya election State Department declassified cable Condeleeza Rice Javier Solana power sharing Mwai Kibaki Rail

Remember the chronology:

December 18 – Published interview with Ranneberger says he anticipates “free and fair” election (in spite of knowing that US-funded Results Transmission computers had been shelved by Electoral Commission of Kenya and describing in a December 24 cable “credible reports” of efforts to orchestrate rigging in Odinga’s Langata Constituency which would eliminate him as a presidential candidate, having told me on December 15 that “people were saying” that Raila could be defeated in Langata.).

December 27 – Kenya votes; the International Republican Institute front office team in Kenya for the Election Observation Mission were due to fly on from Kenya to Pakistan to observe the election planned for January 8; we learn the news of the Benazir Bhutto assassination on the way to “open” the polls in Nairobi.

December 28 – Ranneberger cable says election went well, although fraud could arise in tally.  He had opined in the December 24 cable that “the outside chance that widespread fraud would force us to call into question the result would be enormously damaging” to U.S. interests, although both the leading candidates were “friendly to the US”.

December 28 – 30 – Fraud arises in tally at ECK headquarters, witnessed by Ranneberger along with EU Chief Observer.

December 30 – ECK resumes suspended count and holds restricted announcement of Kibaki win, followed quickly by twilight swearing in at State House; Ranneberger publicly encourages Kenyans to accept ECK results; live broadcasting suspended, congratulations to Kibaki also issued by spokesman for Main State Department/US while UK and EU question results.

December 31 – (Monday morning) State Department spokesman in Washington withdraws congratulations.

January 2 – Ranneberger’s cable to Washington documents that Ambassador witnessed fraud in the tally: “much can happen between the casting of votes and the final tabulation of ballots and it did” (and that between the December 28 and January 2 cables, Ranneberger held daily conversations with Assistant Secretary Frazer and December 29 and 31 conference calls with the National Security Council and Frazer).

January 3 – Secretary of State Rice, along with Ranneberger, is publicly calling for negotiated power sharing between Kibaki and Odinga. EU joins, following UK, having previously called for remedial action for election fraud (see declassified Rice cable above).

[“Peace deal” is eventually signed on February 28, 2008 which results in limited power sharing with Odinga as Prime Minister and ODM getting some cabinet portfolios and support by Kibaki and Odinga for new constitution that establishes county governments and devolves some powers, while eliminating Prime Minister position; impunity for election fraud and post election violence enshrined on de facto basis. Exit poll funded by USAID as “vote verification” tool showing Odinga win is released by UCSD in July and by IRI in August.]

Given the context of potential turmoil in nuclear armed Pakistan, bordering the escalating war in Afghanistan, during the Iraq “surge”, it could be imagined that those with responsibility for the whole of CENTCOM’s Area of Operations which included Kenya at the time, or even the entire globe in the case of the State Department, might have been initially more reliant on the Ambassador and the Africa Bureau and a little slower to realize that the election had in fact fallen to fraud such that we were “forced to question” the ECK’s “results” [which never were even published].

Kenya 2017 – EU Election Observation Mission releases Final Report

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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.

EU Election Observation Mission 2017 Final Report

FREE, FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant

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Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.

Kenya’s presidential election petition – it was clear IEBC did not follow the law, even before Supreme Court Registrar showed serious skulldugery with ICT

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Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):

Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.

It is simply not the same thing at all in my opinion.

Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.

Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)

I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.

People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.

Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”

Democracy International releases Final Report on Observation of Egyptian Referendum; EU to observe presidential vote

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Nasser Sadat Sisi

Nasser Sadat Sisi

Democracy International (DI) organized a comprehensive international observation mission for the constitutional referendum in Egypt on January 14 and 15, 2014. Although the actual administration of the process on the referendum days appeared to allow those citizens who participated to express their will, DI concluded that the restrictive political climate in Egypt impaired the referendum process. The referendum took place against a backdrop of arrests and detention of dissenting voices. There was no real opportunity for those opposed to the government’s “roadmap” or the proposed constitution to dissent. This constrained campaign environment made a robust debate on the substance and merits of the constitution impossible.

Download the full report here.

EU Foreign Minister Catherine Ashton announced today that the EU would be observing the presidential election scheduled for May 26-27. See the Project on Middle East Democracy Egypt Daily Digest. This may make it more difficult for any decision not to mount a full American observation under USAID, but it strikes me as premature to commit to observing without seeing some progress on the types of concerns that are identified in the Democracy International report on the campaign environment back in January.  The ability to “witness”  on the ground and report accurately on the environment has value but in a presidential election under the circumstances there is risk of being seen as inadvertently giving legitimacy if there is not a bona fide effort by the existing authorities to allow a real competition.

 

Are “free and fair” elections passe in Kenya?

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Uganda Debt NetworkHappy American Independence Day–it has now been a full four months since Kenya’s 2013 election, yet the results have still not been released by the Independent Electoral and Boundaries Commission.

The 2012 Kenyan Constitution mandates in Article 81: “The electoral system shall comply with the following principles––

(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or
corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate
and accountable manner.

Thus “free and fair” is the legal standard in Kenya. So what standard did the international observer missions that issued their reports on Kenya’s elections without waiting for the official results apply?

Note this from Mienke Mari Stetytler’s “Observing the observers: how the Kenyan election was verified” republished in the Daily Maverick this week:

One month after the election, on April 4th, the Carter Center released its postelection statement. “In spite of serious shortcomings in the Independent Electoral and Boundaries Commission’s management of technology and tabulation of final election results, the paper-based procedure for counting and tallying presented enough guarantees to preserve the expression of the will of Kenyan voters.”
Kenneth Flottman, an independent elections consultant, noted that not one of the observer missions referred to the elections as “free and fair” in their preliminary or post-election reports. “Holding back on calling the election ‘free and fair’ reflects the reality of the known problems with the election,” Flottman said. “At its most crass, this is a way to say that the government in power cheated some, but the opposition probably would have lost anyway.”

He conceded that “there is a tendency to apply lower standards to achieve a ‘free and fair’ election in Africa compared to other regions [of the world]. If anything, this makes the decision not to apply the label to this election in Kenya more noteworthy.”

David Pottie, associate director of the Carter Center’s democracy programme, contested this view. “It isn’t that African elections are held to a different (higher or lower) standard than countries elsewhere in the world,” Pottie said in an e-mail. “Rather, the Carter Center bases its assessment on a) Kenya’s international obligations and b) Kenya’s constitutional and legal framework.” He added that “free and fair” is no longer the “language of choice in international public law”.

Peter Visnovitz, EU election observation mission spokesperson, agreed: “The ‘free and fair’ phrase fell out of use because defining an election as ‘free and fair’ is very black and white—it requires a yes or no answer. Whereas, in fact, electoral processes are complex and it is very difficult to come up with a concept of ‘fair’ that would please everyone.”

Ilona Tip, operations director at EISA’s South African office in Johannesburg, explained that phrases like “transparent and credible” or “the expression of the will of voters” are now preferred.

.  .  .  .

Kenyan Parliamentary committee summons registrar of parties; issues include failure to publish election results

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Old KANU Office

The Star reports on the latest round of the IEBC controversy:

Acting Registrar of Political Parties Lucy Ndung’u has been summoned by the National Assembly Committee on Justice and Legal Affairs. The committee wants to find out why she is holding two offices, the management of party affairs and budget allocation.

As the acting registrar, Ndung’u is yet to take the oath of office because her term expired with the coming into force of the Political Parties Act in late 2011. . . .

. . . .

Chepkonga also wondered how the registrar will distribute parties’ funds when the IEBC had not computed the March 4 election results. In the financial year 2013/14, the office of registrar of political parties has been allocated Sh344,650,758 by the National Treasury. But the House will have the final say in approving the expenditure.

The Act provides that ninety five per cent of this fund be shared proportionately by reference to the total number of votes secured by each political party in the preceding general election. Five per cent is left for administration purposes.

In effecting the 95 percent, the total number of votes secured by a political party shall be computed by adding the total number of votes obtained in the preceding general election by a political party in the election for the President, MPs, County Governors and members of county assemblies.

“These are some of the things we will be seeking explanations a committee. The management of public finances must be open,” Chepkonga said. William Cheptumo (Baringo North), who is also a member of the legal committee, said parties want to know the number of votes they got.

“Am also wondering why they have taken too long to compile the number of votes per political party,” he said. Ndungu is also said to be interested in retaining her position as the registrar once a new process has been initiated.

Ndungu is also said to be interested in reapplying for the job once a new process has been initiated. However, a number of MPs vowed to ensure that she doesn’t get the job. “She has been the stumbling block to party discipline in the country. We will ensure the motion is defeated,” an MP who declined to be mentioned said.

Here is yesterday’s story in the Standard in which Ms. Ndung’u is interviewed: “Political parties pay day here as Treasury opens purse”.

In the meantime, IFES has announced it is hosting IEBC Chairman Issac Hassan in Washington on June 12 for a discussion about “lessons learned” from the election and the EU Election Observation Mission released its Final Report.

Related articles

Kenya Election: Overall Observation on Observations [Updated]

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This is a quote from an e-mail I sent to an expert back in the U.S. on my way home from Kenya, where I am now. As far as a candid summary of what I think happened in the Kenya elections:

Overall situation with observers was that they were extremely reticent to say anything of substance because of the fear of violence and the fact that IEBC process was ongoing. Further, because of Jubilee attacks on the British High Commission and the West more generally (in my opinion at least) there was an extra level of reticence to say anything that would confront the Government of Kenya election process. We ended up with little impact, if not window dressing, as far as I can see. Someday they will write final reports that might, I hope, involve a deeper look into the original vote count and subsequent events, as well as the prior problems that led to a small voter registration pool, etc.

See Robyn Dixon’s piece in the Los Angeles Times , “Kenya election over, dispute over outcome heads to Supreme Court”::

The narrow margin and repeated failures of the election commission raise the possibility that the Supreme Court could call for an audit of the election result, analysts said.

Kenyatta got 50.07% of the vote, crossing the line with a margin of some 8,000 votes out of more than 12 million cast.

Despite the failures, Kenya’s news media were muted in their reportage of the commission problems. Even international observers have tip-toed around the subject.
However, respected Kenyan anti-corruption crusader John Githongo called the election a failure Sunday. Githongo, an election monitor, said for months a group of community organizations had tried in vain to warn the election commission of problems in its systems and approach.

“In my personal opinion, it’s a failed election,” Githongo said in an interview with The Times. “I think the IEBC performance was catastrophic. I was part of a group of organizations that repeatedly warned them that these problems were there and on the way.”

Commission Chairman Issack Hassan denied the problems and failed to turn up for meetings with the organizations, according to Githongo.

Githongo said Kenyans were so keen to avoid a repeat of the violence that followed the disputed 2007 poll that many, especially in the Kenyan media, kept silent about the obvious problems in the election commission.

. . . .

Githongo’s criticisms come after reports that Safaricom, the mobile phone provider involved in the electronic system that was supposed to transmit results to the central tallying point, also warned the commission of looming failures in the weeks before the election, and was also ignored.

Patrick Smith, editor of the journal Africa Confidential, said Western officials privately condemned the commission’s appalling performance but said nothing publicly “for fear of being seen as interfering in the election”.

. . . .

Kenya in 2012–More institutions, more institutional dysfunction; Uganda in 2012–Specializing in regional military role

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Yet again, we have a major list of political appointments from President Kibaki announced, apparently unilaterally, with Prime Minister Odinga objecting that he was not consulted.  In this case “county administrators” for the 47 counties — new units of government under the new Constitution.  The President’s office identifies the job description of these new officials as, among other things, coordinating security, presumably including the upcoming elections when the first county governors are to be elected:

Prime Minister Raila Odinga has rejected President Kibaki’s appointment of 47 county commissioners, saying he was not consulted.

He also wondered what their job would be since the Constitution says it’s governors who will be running counties.

The Commission on the Implementation of the Constitution (CIC) said the appointments should be done afresh because the President did not follow the spirit of the law in making them.

Five Orange Democratic Movement Cabinet ministers have also opposed the selection, many arguing that they were not fair to all tribes.

On Sunday, Mr Odinga’s spokesman, Mr Dennis Onyango, said: “The PM says he was not consulted. He also does not understand what their specific roles are because the Constitution says that governors will be in charge of the counties. He feels their appointment is a recipe for chaos in the counties,” Mr Onyango stated.

While making the appointments on Friday, State House explained that they were in line with Section 17 of the Sixth Schedule of the Constitution.

The sections says: “Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.”

The county commissioners will coordinate security, national government functions and delivery of services, according to the announcement from the President Press Service (PPS).

.  .  .  .

President Kibaki has now come out more personally in advance of ICC pre-trial proceedings scheduled next month in the Hague to try another “Hail Mary” to get the post-election violence cases from the last election pulled away from the ICC by constituting a new international crime jurisdiction in a fledgling East African regional court that has no such authority now.

“Has our new Constitution already failed us?” Muthoni Wanyeki in The East African:

.  .  .  .

Going by the behaviour of our politicians as they swing into the campaigns, our new Constitution has already failed us. The idea was that diminishing executive powers, restoring separation of powers and instituting devolution would lessen the intensity of the scramble for the presidency. Well it hasn’t. It is still do-or-die.

Democracy everywhere is an ideal, rather than a reality. And devolution has done nothing yet other than take the battle for the executive spoils of devolution down to the community level all across the country. And create a new battle, for retention of executive spoils, at the centre.

It is hard not to be pessimistic. But it is vital to not get hot and bothered about the electoral farce; we need instead to work to ensure the fallout every five years is not of the 2007 and 2008 variety. This is where the intentions and plans of our security services matter. And this is where the love-hate relationships between all the would-be pilots matter as well. How they group in formation is critical. It tells us who’s in and who’s out — and who among us is likely to be targeted this time round.

In this sense, all the movements away from ODM could, potentially, be worrying. If Raila Odinga is painted as the “enemy” and that portrait extends to his entire ethnicity, we know where to look for the fire next time. We are meant to have an early warning system now. Is it working?

Meanwhile, in Uganda, hope for a “deeper” democracy continue to become more distant in the short run at least, but the Ugandan military continues to grow into a role as a regional force for multinational missions:

U.S. trains African soldiers for Somalia mission, form the Washington Post:

KAKOLA, Uganda — The heart of the Obama administration’s strategy for fighting al-Qaeda militants in Somalia can be found next to a cow pasture here, a thousand miles from the front lines.

Under the gaze of American instructors, gangly Ugandan recruits are taught to carry rifles, dodge roadside bombs and avoid shooting one another by accident. In one obstacle course dubbed “Little Mogadishu,” the Ugandans learn the basics of urban warfare as they patrol a mock city block of tumble-down buildings and rusty shipping containers designed to resemble the battered and dangerous Somali capital. . . .

“Hundreds of Somali’s Complete Military Training” reports IRIN:

IBANDA, 14 May 2012 (IRIN) – Over 600 Somali troops completed six months of military training in southwestern Uganda on 10 May and are heading home to boost the forces fighting Al Shabab.

Col Winston Byaruhanga, head of Bihanga military training school in Ibanda District, told IRIN the 603 soldiers who trained alongside 248 Ugandans will help bring peace and stability to the country.

“These soldiers will significantly reinforce the Transitional Federal Government (TFG) and contribute to more stable conditions to deliver aid and bring the country on the way to development,” Byaruhanga told IRIN.  .  .  .

DRC: “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

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“Congo Opposition Rejects Early Poll Results,” Financial Times [It is a bad sign that “the money quote” is anonymous]:

.  .  .  .

According to the latest partial results, Mr Kabila is winning most support from the mining-rich Katanga province, his stronghold. Some observers have questioned the use of an unaudited voter registration system, which allotted Katanga 4.6m voters, 50 per cent more than the capital Kinshasa, home to 10m people.

A UN Security Council meeting last week noted some electoral irregularities but pressed for a peaceful conclusion to the polls.

“There is no [international] appetite to press for transparency, but just pushing to accept whatever result [the poll commission] comes up with is not going to bring peace,” one Congo expert told the FT. “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

Joshua Marks, of the National Endowment for Democracy, a US-funded foundation, said: “The Security Council wants to avoid violence at all costs. He added: “It’s patronising to the Congolese people. . . You’re still going to have these unresolved grievances in the country and an ever larger number of people against the Kabila regime.”

Despite mineral wealth in copper, gold and diamonds, Congo has slipped to the bottom of global development rankings under Mr Kabila’s latest term, as the country recovers from the 1998-2003 war in which an estimated 5m people died. A clutch of rebel militias still hold sway in the east.

A real election requires credible preparation by a credible election commission and credible dispute resolution mechanisms.  The DRC election has already gone this far (past the actual voting) without the “international community” blowing the whistle.  The Carter Center and the EU observation missions have made clear that there are serious issues with the preparation and execution of the election by the government.   The actors who have supported the process to date need to stay engaged and stay committed as the process continues.

Congolese voters need hope that it makes some difference who they voted for, just like voters anywhere are entitled to expect.  A pretense that the voters cannot believe in can be expected to drive violence.

Here is the Nov. 28 preliminary post-election statement from the Carter Center election observation mission.