Kenya’s “fresh election”: new statement from Carter Center EOM and background on UNDP election support to GOK

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.

kenya-statement-supreme-court-ruling-100417kenya-statement-supreme-court-ruling-100417

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.

Source: “EU support for democracy in Kenya” 17/1/2017

The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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“Sitting on” the embargoed USAID-funded IRI exit poll indicating opposition win in Kenya 2007 election, I wished someone would subpoena me

 

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?

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

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.”

Election Litigation in Kenya: What is status of preservation and sharing of forensic evidence from KIEMS on Results Transmission? [update 25 Aug]


Short answer is people involved are extremely quiet on this front.

[UPDATE:  Good news!  U.S. Ambassador Robert Godec spoke yesterday at the annual National Conference of the Law Society of Kenya.  The text of his remarks is here.  Based on his remarks about transparency and the rule of law, I’m sure we will step up and do the right thing here.]

On my end I had my periodic status call today on my 2015 FOIA request to USAID about records relating to our support for the IEBC in 2013, including the failed Results Transmission System. Nothing new since April.

This is part of what I wrote July 3:

According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.

Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. 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.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.

Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.

In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).

The 2017 Kenyan Supreme Court petitions are under a final seven day deadline of today.  [Update: NASA has filed a challenge Friday night in Nairobi, to my understanding joined by The Thirdway Alliance.  Do not know of others.]

“Preliminary Findings” released by Kenyan civil society coalition on election

Update 23 Aug – Here is the latest from the  Kura Yangu Sauti Yangu monitoring:    KYSYElectionDataUpdate-WhyDisputed-22Aug2017

Following the unlawful raid on AfriCOG in Nairobi yesterday, today the Kura Yangu Sauti Yangu election monitoring program which has been engaged since long before any of the International Election Observation Missions were constituted, released its Preliminary Findings.

Please read for yourself (especially if you have commented publicly so far on Kenya’s election).

#ElectionsKE2017 – How the KIEMS Results Transmission System was supposed to work

 

Democracy Assistance

Uraia- Because Kenyans Have Rights

IFES Africa, Elections in Kenya, 2017 General Elections, frequently asked questions:

2017_ifes_kenya_general_elections_faqs_update_7.21.17.pdf

[page 8] How does Kenya Integrated Elections Management System work?
The Independent Electoral and Boundaries Commission (IEBC) 2017 Election Operations Plan and the 2017 Elections Results Management Framework are the guiding framework for the design and implementation of the Kenya Integrated Elections Management System (KIEMS).  
As noted, KIEMS is comprised of four major integrated sub -systems, which get activated during specific electoral phases.
“The electronic results transmission (RTS) part of KIEMS is comprised of a module to capture and transmit election results from the various polling stations, for the six contested positions of president,National Assembly representative, senator, governor, women county representative and county assembly ward.
The results for the presidential election will be transmitted together with an image of the polling station tally sheet (emphasis added).

For the other five elections, the transmission of the image of the tally sheet shall be optional.
Additionally, the RTS has software that supports the tallying of results and displays them at the 290 constituencies and 47 county tally centers, as well as the national tally center.
The system also includes features for validation of the results.”
.  .  .  .

Happy National Day and Thanks for the Troops (Burundi)

2016_06_28-Burundi_Rotation-2

AMISOM flickr photo- Burundian troops rotate home
The State Department issued this statement today, as Burundi’s long crisis drags:

On behalf of the Government of the United States of America, congratulations to the people of Burundi on the 55th anniversary of your independence.

We applaud Burundi’s ongoing commitment to international peacekeeping operations and recognize the positive impact its troops have had in Somalia.

The United States stands with all Burundians committed to peace and prosperity. As you reflect on your history and address the challenges of today, we send best wishes for a bright future.

In the meantime, the Burundian government has accused the West and “international organizations” of conspiring with the Rwandan government to seek regime change and to steal Burundi’s resources.

“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

Mocking democracy: Government of Kenya announces “Kenyan Asian community backs President Kenyatta’s re-election”

Democracy Assistance

“URAIA Because Kenyans Have Rights”  — Democracy Assistance facade?


[Update: The Daily Nation, State Officials on the campaign trail“:  “The Jubilee administration has deployed civil servants and key government officials on vote hunting missions across the country in contravention of the law.”]

Let it not be said that there is any serious pretense that the Government of Kenya is neutral in the contest for political allegiance of potential “swing” ethnic groupings, rich in votes or money, in the current election, a contest for power between the Uhuruto ticket representing the current generation of the original KANU establishment led by the Kenyatta family and an opposition coalition led by Raila Odinga and Kalonzo Musyoka.

Here is the “latest news” from the Government of Kenya, Office of the President (www.president.go.ke): “Kenyan Asian community backs President Kenyatta’s re-election”.

This years’ “Jubilee Party” was literally formed at State House as the Uhuruto re-election vehicle, formally merging Uhuru Kenyatta’s TNA and Ruto’s URP, just as this meeting of State Officials and “Asian” Kenyan businesspeople and politicians for the re-election campaign was convened at State House.

Conduct of this sort, aside from being a clear form of corruption per se as a misappropriation of public resources for private gain, is explicitly against the mandatory Code of Conduct for the Kenyan political parties.  (On paper the campaign, in full swing for months, is not even to start until May 28.)

Will the Registrar of Political Parties and the Independent Electoral and Boundaries Commission take action?  The IFES led consortium of US based organizations both facilitating and underwriting the cost of the election, while also coordinating its “observation” at the expense of American (and in parts Canadian) taxpayers?  What about ELOG, the donor supported Kenyan observation group?

IFES has already beeen attacked by the Kenyan Government and ELOG is charged with continuing to do business in Nairobi on a permanent basis, so it would be a huge act of institutional courage for it to seriously challenge the conduct of the Office of the Presidency.  We have been in the mode of continuous institutionalized democracy promotion in Kenya for 15 years (!) now.  No matter how many  capacity building seminars we hold for the little people in the cities or the politicians in the resorts in the Rift Valley or at the beaches, if we let ourselves simply be mocked and pretend that this is working we will surely risk moral injury to our own democracy.

Read the whole campaign piece here:

The Asian community in Kenya has endorsed the re-election of President Uhuru Kenyatta.

Leaders of the community said they have taken the decision to rally behind the President because of his commitment to creating an enabling environment of business and development.

The leaders, who visited President Kenyatta at State House, Nairobi, said policies implemented by the Jubilee Government have enabled more business to thrive and made Kenya a preferred destination for investors.

At the meeting which was also attended by Deputy President William Ruto, representatives of the community assured the President that they would rally behind him to ensure the country’s development tempo is sustained.

“What we have seen in the last four years needs no magnification and my words can be supported by facts that can be seen and quantified, “said businessman Iqbal Rashid.

The businessman cited the upgrading of the old railway system with the Standard Gauge Railway, the upgrading of the Jomo Kenyatta International Airport and continuous improvement of the infrastructure connecting cities and towns.

He said the continued flow of investments into Kenya from all corners of the globe was as a result of the confidence in the leadership of President Kenyatta.

Women leaders Parveen Adam, Shamsha Fadhil and Farah Mannzoor thanked the President for championing an agenda that fosters inclusiveness as well as the prosperity and unity of all Kenyans.

They said women appreciate his efforts to spearhead the campaign to have the two third gender rule passed by the National Assembly.

Businessman Bismiahirahman Nirrahim said the Asian community has witnessed the transformative leadership of President Kenyatta which has helped in creating conducive environment for investments.

He cited the increased ease of doing business resulting from President Kenyatta’s policies including the policy to reduce the time it takes to register a new business.

Nirrahim said the youth and women empowerment program implemented by President Kenyatta’s Administration has also been a transformational policy that deserves praise.

President Kenyatta thanked the leaders for their support and assured them that he would continue working tirelessly to make Kenya a more prosperous country with shared prosperity.

He said the Asian community has been keen in developing Kenya saying the community has always been in the forefront championing the interests of the nation since the days of independence struggle.

“Like all of us you were part and parcel of the Kenyan struggle for Independence, the role you played cannot be ignored,” said President Kenyatta.

The President said he is a believer in an inclusive society adding that he would want to see the Asian community participate more in both social and economic development of the country.

“This is the government that believes in encouraging partnership and working together. Your success is our success,” said President Kenyatta.

Also present were the Chief of Staff and Head of Public Service Joseph Kinyua among other senior government officials.

Author

Gok

Update May 26:  See “Asian Kenyans seek to be declared a ‘tribe’ of their own” in today’s New York Times.