While Washington grapples with another Kenyan election mess, an update on my FOIA pursuit of our policy from 2007

Still no more documents from USAID from my 2015 request for material involving our support for the IEBC in the 2013 election, from which I finally learned in April of this year that USAID had tasked the American International Foundation for Electoral Systems with making sure the electronic Results Transmission System that failed worked:  “IFES will ensure this system is fully installed, tested and operational for the 2012 election.  Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

In the meantime my Mandatory Declassification Review appeal relating to a document I originally requested from the State Department more than eight years ago relating to the January 3, 2008 post-election telephone conference between U.S. Secretary of State Rice and E.U. High Commissioner Javier Solano is now more than a year old:

September 15, 2016

Re: Case No. M-2016-04563

Dear Chairman:

I am appealing the decision to withhold in full all material identified in Case No. M-2016-04563.

Because all information was withheld in the response to my original FOIA request, FOIA Case No. F-2009-07810 and this Mandatory Declassification Review request, I have not been given much ability to evaluate and argue the details of the withholding on appeal. It is difficult to believe that every bit of information in the identified document responsive to my requests has been and continues to be necessarily kept secret in the interests of national defense or foreign policy.

In particular I note that I requested documentation on the telephone conversation between former Secretary Rice and former EU High Representative Javier Solana based on media reports containing public communications about that call, the subject matter of which was as I understand related to public diplomacy regarding the Kenyan election. Both our country and the E.U. had undertaken assistance programs to support democracy in Kenya, including neutral International Election Observation Missions and I was an NGO employee as Chief of Party for the USAID-funded observation on the U.S. side. It would seem that U.S. interests and law would counsel a tilt toward openness rather than secrecy in this specific context and I ask for your consideration in this regard.

Thank you.

It took a village to get Secretary Clinton’s public records–but the lack of a culture of legal compliance within the State Dept saddens me 

The release this week of the report by the Office of the Inspector General for the State Department regarding Email Records Management at the Office of the Secretary debunks for anyone who did not have enough background to know better the various arguments that Secretary Clinton’s use of a private email system from a server in her home in New York was remotely plausibly compliant with public records requirements applicable to all public business in the State Department.

As a State Department public records requestor for the material involving my work in Kenya, it is certainly dispiriting to see how these obligations have been addressed.

Kudos to the Office of the Inspector General of the State Department for solid and challenging work in vindicating the public interest by investigating and reporting to the rest of our government and the public regarding failures of senior leadership at the State Department to adhere to applicable standards for public records.  Thanks to private litigants, the courts and the OIG, we can say that in some senses “the system worked” and we are getting much of the information that we are entitled to as Americans about the work being done in our name.

For years the crucial State OIG sat vacant, and when I submitted my “hotline” complaint to the controversial Acting OIG early in the Obama Administration about issues related to interference with democracy assistance agreements to support the failed Kenyan election, the complaint was shunted to the State Department’s Africa Bureau itself without any protection for me as a reporting source or any apparent investigation.  So this new investigation and report shows progress.

Now, however, there needs to be some serious soul searching within the State Department as to why so many people ducked out, took a pass or actively facilitated an “opt out” by “the corner office” of clear requirements regarding the records of how the public’s business was being conducted.

And why it has taken so long, so much public expense, and so much outside legal intervention to get to the public basic facts of how the State Department operated throughout the last administration.

The State Department has been America’s most prestigious employer.  This is embarassing and needs to be fixed.

It is all made worse, not better, by the fact that many people like me expect to have no competitive morally acceptable alternative choice in the next American presidential race than the very same politician who put us all through all of this as Secretary of State.

Secretary Clinton, what is the problem, here?  Are your friends, advisors, subordinates afraid for some reason to help you understand and navigate your basic legal responsibilities in conducting public business?  If so, why?  Is that not something you can fix if you make it a priority?  Is it not something that is dangerous not to fix if you are to be president?

It astounds me that you seem to have thought somehow that this whole alternative record keeping system would remain secret.  That was surely magical thinking.  Aside from the law and compliance issues, how could the brilliant, accomplished and loyal people around you fail to burst that bubble?

Your country, and our democratic friends, need you to “straighten up and fly right.”

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John Wesley

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

U.S. Secretary of State Hillary Rodham Clinton...

U.S. Secretary of State Hillary Rodham Clinton (center) walks with Kenyan Minister of Agriculture William Ruto (left) and Kenyan environmental and political activist Wangari Maathai (right) during a tour of the Kenyan Agricultural Research Institute (KARI) near Nairobi, Kenya August 5, 2009. (State Department Photo) (Photo credit: Wikipedia)

One could get a certain sense of deja vu from Secretary of State Hillary Clinton’s remarks in Nairobi this weekend about next year’s Kenya election.  The theme, that Kenya has the opportunity to be a “model” for other countries in Africa in how it conducts it’s election is the same one that Ambassador Ranneberger was expressing for the State Department in the Bush Administration in 2007.

Realistically we all know that the Kenya election will not be a model.   Kenya’s incumbent government took too long to pay off and disband the old ECK after the 2007 debacle (while covering up what actually happened at the ECK).  And too long to pass a new constitution as promised by both sides in the 2007 campaign and to then create the new IEBC and too long to address enabling legislation needed for campaigns, voting and governance under the new system.  It is only the extraordinary situation created by the  extended term of the “Government of National Unity” beyond five years that has allowed the IEBC hope of being prepared for an adequate, as opposed to “model”, election next March.

Most of Kenya’s political class is concerned about winning, not about the conceptual quality of the process (hardly surprising–this is the nature of politics everywhere, and certainly in the United States; the difference in Kenya is the specific track record of most of the individual Kenyan politicians in the history of Kenya as a one-party authoritarian state that tortured its citizens for political reasons and has had major violence in all but one multi-party election since; and the uncertainty involving untested brand new institutions intended to keep the Kenyan executive branch from deciding its own election controversies).  Kenyans in general thirst for a fair election, as they did when they went to the polls in record numbers in 2007.  The problem was the disconnect between going to vote and having your vote counted.

Surely it is a bit patronizing to suggest that the chance to be extolled as a model to say   Zimbabwe or, depending on how the wind blows, Uganda, is a relevant factor to Kenyans, given what they have at stake for themselves, in Kenya.

But if it is meaningless to Kenyans, isn’t the “model” meme harmless?  Not necessarily.

Having lived through the disaster last time, I saw the desire for a “model” election morph into the denial of the hard but obvious reality of failure.   Read Ambassador Ranneberger’s cable to Washington from the day after the 2007 vote, Part Six of my FOIA Series.   We, the United States, through our Ambassador at least, wanted that “model” election badly enough that we were not willing to acknowledge that we didn’t get it until things got completely out of hand AND the EU had spoken out on fraud at the ECK.

Here are key quotes from Ranneberger’s December 28, 2007 cable to Washington:

The electoral process thus far deserves a strong statement of support, and clearly meets a high standard for credible, transparent, free and fair elections.  I made an informal statement last night that was carried extensively on Kenyan television.  It is, however, too early to make definitive pronouncements.  The ECK will likely not announce final results until December 29.  The EU and Kenyan domestic observation missions will make statements on the 29th.  By COB Washington time on the 29th we will send a proposed draft for a statement by Washington.  IRI will make a largely positive statement the afternoon of the 28th. (emphasis added).

.  .  .  .

“Advancing U.S. Interests”

We will keep the Department closely informed as results become clearer.  At this point, there are sound reasons to believe that this election process will be a very positive example for the continent and for the developing world, that it will represent a watershed in the consolidation of Kenyan democracy, and that it will, therefore, significantly advance U.S. interests.  The Kenyan people will view the U.S. as having played an important and neutral role in encouraging a positive election process” [End]

So on December 30, after the ECK named Kibaki as the winner of the election, the State Department issued official congratulations to Kibaki and called for acceptance of the results, as Ranneberger was doing in Kenya.  Ranneberger acknowledged in his own post-action cable of January 2, 2008 that he himself witnessed the failures at the ECK along with the head of the EU Election Observation Mission:

Other alleged irregularities, such as
announcing results that ECK personnel personally inflated should have been, could have been, but were not corrected. At one point Kivuitu told me that his concerns about the tabulation process were serious enough that “if it were up to me, I would not announce the results.” In the end, he participated with other commissioners in an announcement late on the 30th . . . . (emphasis added)

Either we wanted a “good” election badly enough to pretend that it had happened when in fact we knew better, or we wanted to support the outcome chosen by the ECK rather than a true count of the votes.  I don’t know yet which it was, but as an American it would be more comforting for me to believe that we were sincere in our pre-election expression of hope for an honest election, even if I knew from my own personal interactions with the Ambassador that he was taking some steps consistent with his more favorable view of Kibaki over Raila, such as his intervention in the pre-election public opinion polling to lower the expectations of the opposition (see his own depiction to Washington on December 14, 2007 in Lessons for Kenya’s 2012 election from the truth trickling out about 2007–new cables from FOIA (Part One)) and the McIntire/Gettleman New York Times story “A Chaotic Kenya Vote and a Secret U.S. Exit Poll” and his praise in the Kenyan media of Kibaki’s record on corruption vis-a-vis the John Githongo critique just before the vote.

Secretary of State Clinton and Assistant Secretary Carson appear to be getting a pass on how to handle the next round of Kenyan voting due to the delay of the election into the tenure of the next American administration.  A new Ambassador, reporting to a new Assistant Secretary, reporting to a new Secretary of State, whether appointed by Obama or by Romney, will have this early up on their collective watch.  I hope they will all know as much as possible about exactly what happened last time so as to approach this with realistic sobriety.

Part Four–Lessons from the 2007 Kenyan Election and new FOIA cables

See Part One, Two and Three of this series. And the full Freedom of Information Act Series.

Also see Election Observation–Diplomacy or Assistance?

The fourth cable I received last weekend under the Freedom of Information Act was a lengthy unclassified report from Monday, December 24 entitled “Kenya on the Eve of National Elections”.  The most noteworthy items are the Kibera issue discussed in my last post and, as also discussed there, Ranneberger’s very explicit position regarding what he considered U.S. interests to be in the whole matter–being able to treat the announced outcome as credible.  Otherwise, the cable is pretty much the kind of thing that I would have expected him to write based on my interactions with him personally and more generally with the Embassy, and as an observer of his very conspicuous role as a media figure in Kenya during the campaign.

Overall, Ranneberger was uniformly positive about Kibaki, even on the corruption issue.  He offered no real positives on Odinga other than, if it can be viewed in a positive light, noting that he was generally a more effective campaigner and speaker than Kibaki, but at the same time his criticisms of Odinga were in context fairly mild. Generally the view in the cable seems to be what I saw in muted form in Ranneberger’s statements to Kenyans through the media, and more strongly in his speech to the delegates of the IRI Election Observation at a reception at the Embassy residence that same Christmas Eve and in private conversation:  it certainly seems that Ranneberger preferred a Kibaki re-election, but in this writing to Washington he acknowledged Odinga as a “friend of the United States” like Kibaki and did not suggest at all that Odinga was seriously dangerous, threatening or sinister in some way along the lines of the some of the attacks from hardline Odinga critics in the U.S. or in Kenya.

Likewise, nothing about ideology;  whereas the New York Times picked up on concern back in Washington about Odinga’s background association on the left during the Cold War, going to college in East Germany and naming his son Fidel, I never talked to anyone with the U.S. government in Kenya that gave any indication that they found Odinga to present ideological or economic concerns to the U.S.  Ranneberger did make one derogatory comment about Odinga to me privately, but I would not let the Times use it when they interviewed me because I felt that it could be misleadingly inflammatory and was said only in private in his office in the context of doing legitimate business.

Another statement that he made to me separately in October in the context of the discussion about the pre-release Steadman poll showing Odinga leading Kibaki by a large margin was that “if we’ve been wrong about this all along” in what was reported to Washington about Kibaki’s standing “we might as well not even be here”.  I have no way of knowing what any of his previous reporting had been, but I was certainly struck when I first arrived in Kenya by how positive he seemed to be about the Kenyan administration and political climate in the context of what I had read in the my preparations for taking the post.  He said that he wanted to have an election observation with the notion of telling an African success story.

Under the heading “Messy, But Probably Credible Elections” Ranneberger wrote:

9.  Election day will almost certainly be messy, meaning some violent incidents, and a fair amount of allegations of interference with the voting process.  Both Kibaki and Odinga have senior people around them who are desperate to win, and who are willing to do whatever it takes to achieve that.  While the potential for dangerous actions must be taken seriously, the track record of the well-run elections in 2002 and the national constitutional referendum in 2005 (which the government lost) bodes well.  The Chairman of the Electoral Commission, Samuel Kivitu, is highly respected and determined to run a clean election.  Elaborate procedures are in place to assure a credible and transparent process.  The large number of international observers will also help to limit misconduct.  The EU has about 120 observers, the U.S. Mission is fielding almost 200 observers plus funding an observer mission of the International Republican Institute led by former A/A Connie Newman, and there will be over 17,000 Kenyan domestic observers.  Finally, as we have traveled the country, average Kenyans have emphasized their determination to participate in a free and fair election (even if this is mixed with underlying tribal sentiment).

10.  If Kabaki loses, Odinga supporters will be riotously happy.  At the same time, most of the Kikuyu elite, with their business interests, will want to work out accommodation with the with the new government (many have already launched feelers).  The greater danger is if Odinga loses.  He and his supporters will be very tempted – even if the Electoral Commission and observers deem the process credible — to declare the election fraudulent and to resort to violence.  In that case, there could be significant violence and several tense days while things calm down.  While there is no likely scenario that would lead to generalized instability, substantial violence along tribal lines would be a setback for Kenyan democracy.