Democracy Assistance needs an external non-governmental watchdog

Democracy assistance needed - Presidential campaign rally Trump Floida Democray assistance needed

This recommendation for the creation of a democracy assistance “watchdog” organization is where I have ended up from my own experience as an election observer and a volunteer trainer. And especially my role as a “sentimentalist whistleblower” from my time as “East Africa Resident Director” for the International Republican Institute with the failed 2007 Kenyan election.

I recently had the chance to visit with a wise American friend from my Kenya time who is of the persuasion that we, the United States, would be better advised on balance not to try “democracy promotion” and to step back from being entangled in foreign politics. My accumulated years of watching democracy assistance in addition to my own search to understand what has happened in Kenya in spite of my best efforts force me to take this view seriously in a way that I would not have some years ago. Nonetheless, I am still in a “different place”and have an alternative suggestion. (When my friend stated that she would rather we spent the money on educating children I had to concede that would be better, but we have been around long enough to know that would not happen.)

Admittedly I have not been objective. This goes to the “sentimentalist” aspect of my speaking out about what went wrong on my watch in Kenya in 2007-08 and what I saw going wrong in 2013. Even though losing or limiting valued personal friendships was inevitable as a result of being a dissenter and agreeing to speak on the record to The New York Times about what happened I did it because I felt obligated and I have continued to feel affection for my former colleagues. Nonetheless, having been briefly an insider and otherwise around the democracy assistance community does give me a basis to continue to believe that most of the people involved in democracy assistance are relatively sincere and would prefer to accomplish more for the intended beneficiaries of the assistance.

Beyond that, the reality is that we are going to continue to do democracy assistance anyway. The question is just whether we want to get better at it or not.

Democracy assistance has solid bipartisan support from Republicans and Democrats in Congress whether or not the base voters of either party are persuaded conceptually. Yet we observe by consensus that we are in a period of global “democratic recession” suggesting that what we have been doing may be suboptimal. People outside Washington generally do not have time and other resources to be engaged unless they are either participants (and thus beneficiaries) of the system or ideologically engaged to a degree that inhibits having a place at the table in Washington.

One of the problems is the inability to develop the learning and community of practice that would be available if there was greater transparency. Transparency is not really in the immediate short term interests of implementing organizations like IRI, NDI and IFES which for perfectly natural reasons would rather stay out of the line of fire from beneficiary critics of donor policies and just find it easier, like any of us, not to have anyone looking over their shoulder.

It is clear to me that the values behind “open government” would be most compelling in the area of democracy assistance itself. Donor taxpayers and intended beneficiaries of democracy assistance ought to see what they are paying for, and intended to receive respectively. The practice of informal secrecy creates opportunities for incumbent host governments to manipulate and divert programming. Informal secrecy also creates opportunities to avoid scrutiny of irregular interference in democracy programming by donor diplomats or others who may have competing objectives. [The essence of my experience as I summarized in “The Debacle of 2007″ for The Elephant.]

See also: “President Trump’s new Assistant Secretary of State for Africa candidly explained why election observation and technical assistance have to be firewalled from diplomacy to have integrity“.

Meanwhile donor funds are available to tell positive, promotional stories as part of the donors’ general public diplomacy efforts even if the stories may gloss over the grittier realities that would need to be dealt with to actually improve an aspiring democracy– whether just to burnish images or to serve “stability” by avoiding angering voters who might be upset to know more about how their leaders are conducting themselves.

Existing watchdog organizations do not seem well equipped to work on foreign democracy assistance–partly because they have so many seemingly bigger fish to fry. In an era of “permanent war”, massive defense budgets and big expenditures in health and other programs and huge, growing deficits, democracy promotion programs are going to continue to be below the radar and outside the ordinary bandwidth of most groups like the Project on Government Oversight that do much of the best oversight in other areas. Related limitations apply for public interest journalism.

The Inspector General function is available to deal with certain specific wrongdoing within USAID programs and can deal with things like theft of funds from implementing organizations but a watchdog outside government could help all of us learn whether we are really doing the right things with our resources to help democratic development. While the USAID investigation process of my complaints regarding my experience in Kenya at least generated the informal confirmation of my concerns there was no remedy offered nor public reporting. Realistically democracy assistance gets into messy political questions that can only be addressed candidly in the first instance from outside of government.

There is new attention in Washington to “competing” with China in East Africa. In the bigger picture we have entangled our own economy deeply with China’s for too many years to simply change our minds now so our relationship with China will be nuanced. We do see that China has moved in a more rather than less authoritarian direction in recent years and that the Communist Party of China is doing more to directly collaborate with like minded ruling parties as we see with Jubilee in Kenya.

If we care about democracy in the long term the size of China as a power committed enough to its own authoritarianism to work to suppress its own expatriates and manipulate news coverage in Africa is concerning even if it does not succeed in propagating the CPC model.

But we do not need to be reactive: let’s do what we do better instead of playing catch up on their terms if competition with China is a motivator. It is the ballot box, not Bechtel Corporation (as an example) that gives the United States a comparative advantage over China. To mutually share the opportunities of democracy effectively, we need to generate more transparency and better oversight for our democracy assistance.

Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition

Kenya EACC at Integrity Centre NairobiBack in 2015 I submitted a Freedom of Information request for USAID records relating to the election assistance through IFES for Kenya’s IEBC (the election commission).

The Mission in Kenya sent several hundred pages to the USAID FOIA office more than 30 months ago. A year ago I finally got the first release, simply a heavily redacted copy of the Cooperative Agreement itself funding the program.

I have just recently gotten the second release, the first substantive group of redacted copies of the underlying documents. From this I am starting to learn some information about the procurement of the failed Results Transmission System, but that matter remains somewhat sketchy so far.

Sadly I did see that IFES staff reported to USAID in the aftermath of the vote that they were busy working on the defense of the Supreme Court petition which impacted their availability to address questions about the systems issues.

I also learned that the election assistance donors were discussing amongst themselves the extent to which the UNDP, which administered “basket funding” for the election should cooperate with an investigative inquiry regarding procurements from the Ethics and Anti-Corruption Commission (EACC).

Kenya High Court Nairobi AFRICOG lawyer Harun Ndubi press conference 2013 election

I did learn that one prospective bidder for one Results Transmission System procurement reported to the USAID Mission December 2012 that the allowed time for proposals was insufficient, to no avail as USAID said the impending election date did not allow delay.

When I consulted with AfriCOG, the Kenyan civil society organization, on election observation, and court petitions were filed seeking first to enjoin the IEBC from proceeding with an informal/irregular alleged vote tally when the Results Transmission System failed, and then after the IEBC went ahead, to challenge the alleged results, I did not know the Results Transmission System was a U.S. Government procurement under the Agreement, nor of direct involvement of IFES in supporting the other side in the litigation.

Barack Obama, son of American anthropologist, retired President USA, stops in Kenya on way to South Africa after safari

Ten years after 2008 campaign, the “Birthers” have won for now in the U.S., but Obama remains a positive symbol with time for another act:

Former President Obama stopped in Kenya on his way to South Africa, his third visit to Kenya since arriving on the national political scene in the United States in 2004 as an Illinois state legislator through a speech at the Democratic Convention that nominated John Kerry to challenge the re-election of George W. Bush.

It is now ten years since I returned to the United States with my family from our year-long East Africa democracy assistance sojourn in Nairobi in the wake of the failed 2007 election, the post-election violence, and February 28 “peace deal”. The day we flew out of JKIA for Amsterdam en route to Atlanta on the way home to Mississippi I was first exposed to the “birther” conspiracy theory through a front page story in the Daily Nation.

Many may not remember fully now, but recognize that in its inception the “birther” conspiracy theory was not just the idea that then-Senator Obama was secretly born in Kenya, and secretly smuggled into the United States as an infant, and thus not technically eligible to be elected President. It also fit into the context of the claims that Obama was involved as a U.S. Senator from Illinois in 2007 in a conspiracy with Raila Odinga to steal Kenya’s election on behalf of Muslims, with killing of Christians and embellished from there into a narrative that rather than a loyal American Obama was essentially on the side of al-Queda and the global jihad to establish a sharia-enforcing caliphate. That Obama was in essence on the other side of the war being fought by Americans in the “surge” led by Bush and General Petraeus in Iraq as well as the fundamental underlying values of our democratic republic and Western democracy in general.

The conspiracy theories about the 2007 Kenyan election faded somewhat over time–partly because of the peace deal that put Odinga in Kibaki’s government as Prime Minister where he continued to be friendly to the West and partly because it became clearer that the election was stolen by Kibaki’s side which controlled the ECK (and not by the opposition which didn’t). Reports at the time from the American right at the Heritage Foundation think tank and National Review magazine (“Inside Kenya’s clumsily rigged election” Jan 4, 2008 National Review Online) noting the theft of the election helped American conservatives who cared about facts avoid getting sucked into nonsense about a Luo jihad involving “tribesman” Obama and “cousin” Raila.

While there remain a few holdouts who claim that “we can’t know” who won in Kenya’s 2007 election, they seem to be pretty well limited to personally interested parties at this point with the release of the State Department cables showing that our Ambassador Ranneberger himself saw tallies being changed at the ECK and claimed to have encouraged the late ECK Chairman Samuel Kivuitu to withstand the pressure to declare Kibaki the winner anyway, even though Ranneberger knew that the Chairman had no way to control the Committee which was thoroughly stacked by Kibaki in the weeks and months before the election.

Once it is recognized that the vote tallies were actually changed at the ECK, Americans–most especially rock-ribbed traditional stalwarts attracted to “the Tea Party” and/or Donald Trump’s “neopatriotism”–will understand that Kenyans had a duty not just a right to protest the 2007 election. Americans would not trust biometric voter registration (or tolerate secret voter lists) but most certainly the traditional American narrative would demand that we march on our county courthouses if our votes were simply changed by our election officials. Ranneberger’s pre-election cables to Washington made clear that as of that time, the Kenyan courts were not independent and would provide no recourse so that voters would be forced to go to the streets if there was fraud that became known.

Once you legitimize protesting the actions of the ECK, and recognize that the largest category of deaths in the Post Election Violence, per the Waki Commission, were those shot by Kibaki’s security forces, and the largest number that were identifiable by tribe were Luo, then the whole notion of some extraneous evil conspiracy somehow involving Obama and the global jihad as the reason for the post election violence becomes that much more irrational. The portion of violence in the Rift Valley that then-Assistant Secretary of State Jendayi Frazer insisted on calling “ethnic cleansing” in a January 2008 visit (a label not adopted in Washington) was conducted by Kalenjin militia in the pattern employed by KANU in 1992 and 1997. KANU was a religiously diverse secular party that sought to maintain single-party hegemony through compliant cadres among all major tribes and religious groupings in accordance with its political needs. No suggestion that Moi, who personally identified as a Protestant Christian, was a secret Muslim jihadi even though the victims may have been mostly Christians.

The International Republican Institute/University of California, San Diego exit poll funded by USAID (the one showing an Odinga presidential win by roughly six points that was embargoed for six months) gave more evidence in the details that the 2007 election contest was driven, as normal in Kenyan, by tribal rather than religious alignment with Odinga shown as winning a majority of self-identified Christians and of Muslims (although the margin was greater among Muslims). On the other hand, there was a “gender gap” with women favoring Kibaki and men Odinga.

It may also seem hard to remember now but by January 2009 Obama was sworn in to a wave of good feeling with high approval numbers. He had campaigned as a pragmatic moderate Democrat who was against dumb wars and only for smart ones, a Christian who grew up with limited religion who was popular with the irreligious left, the Christian left and made some real inroads courting what we call “Evangelicals” who were not part of the more politicized harder “Religious Right”. The inaugural celebrations seemed to suggest some real healing from the cultural rifts from “the Sixties” and “Vietnam” that featured so prominently in presidential campaigns throughout my lifetime, as well as a milestone to show that we had come so far in overcoming racial prejudice in the post-Civil Rights era that black/white racial issues were no longer much a part of those cultural rifts. Maybe we had more in common than our political leaders had been telling us since the rise of Fox News and the Bill Clinton impeachment saga; maybe this president could be a “uniter not a divider” where his predecessor had failed. In part this failure was because the Bush political operation ended up pulling a “bait-and-switch” by mobilizing gullible church networks to support the invasion of Iraq for regime change using a claimed causus belli of active chemical/biological and nuclear weapons programs then firing up the culture wars further to drive turnout to get re-elected over John Kerry. This was a bad error of moral judgment that has continued to reverberate through American politics.

Kerry was certainly a Yankee patrician from “central casting” — as Kenyans well know from the 2017 election — but was unquestionably accurate in pointing out in debate with Bush that we had gotten “stuck in Iraq”. Of course Kerry was too polite, patrician and/or patriotic to go for the jugular and trash Bush for Iraq the the way Donald Trump did in his 2016 campaign.

For saying that we were “stuck in Iraq” Kerry got pilloried as “unpatriotic” aside from the “Swift Boat” sliming he got over his military service in Vietnam–conveniently not a problem for Clinton, Bush, Cheney or Trump who all managed in various ways not to get sent, and unlike Kerry, did not volunteer to actually go to Vietnam. Nonetheless, the unhealed cultural wounds were still such almost 30 years after the fall of Saigon that Vietnam was a winner for Bush over Kerry in spite of Iraq.

Part of the reason that Obama took office with a waive of good feeling and better numbers than he had during the election was that McCain declined to play along with trashing Obama in the darker ways and treated him as a legitimate political adversary. It was good for the country and gave Obama a fair start in office.

“Birtherism,” though, in spite of McCain’s choice, became an enduring American movement which has had a profound effect on our politics and transformed the Republican Party with which I had been involved for much of my life.

Ultimately, the Birther Movement became a tool for Donald Trump as an outsider to gain “free media” and attention and admiration with those who were otherwise profoundly afraid of or opposed to the Obama presidency.

People like John McCain and George W. Bush or his family members in politics, whatever their faults and mistakes on policy choices (even the really big one, invading Iraq, which McCain acknowledges in his latest book, The Restless Wave) were too experienced, too educated, and too well advised to believe craziness about Obama being secretly smuggled into the U.S. as a Kenyan child (although the McCain campaign did check it out to make sure as did the McClatchy newspaper chain) and were morally constrained, in my judgment at least, from deliberately lying about it to hurt Obama. If you cannot buy that it was morals, at least we can agree that they were restrained by a judgment that it was better politics to stay out of that gutter. Hillary Clinton also stayed away (even if one credits the report that her adviser Sidney Blumenthal triggered the McClatchy review to make sure their was nothing to it).

Donald Trump was not similarly constrained and his hectoring of Obama put him in the front row of politics in America. He shared headlines with Obama even as Osama bin-Laden was being killed by the Navy under Obama’s command. Not one to accept defeat in an argument by being proven factually wrong, in this case by the release of Obama’s long form Hawaii birth certificate, Trump bided his time and cranked the Movement back up for his presidential campaign in 2015 and 2016, discarding it once he had seized the agenda and the Republican Party and the specific “birther” claim was no longer useful to him.

It has been a bit surreal for me to see this happen. Educated middle class Americans of my generation (Obama’s essentially) have a lot to answer for in our complacency I am afraid. Our democratic republic requires more attention and effort than we have delivered in recent years whatever our party or policy preferences.

Fortunately, just as Obama himself has, we hope, time for other acts in his public life as an American after elective politics, the Trump presidency too shall pass and the Birther Movement will be a strange chapter in political history books. It will leave scars and I expect that Trump will be willing to use other lies for domestic advantage that will manipulate gullible people and torque emotions on difficult and divisive social matters. But in the longer term I think we will rise to the occasion and get to a better range of equilibrium. We have significant long term challenges on poverty, education, healthcare and economic mobility and government debt that have been building up during our protracted wartime, but I think Americans getting more engaged and rolling up our sleeves to work on solutions.

Trump as an individual is something of a fluke. Most of the people who voted for him have little in common with him really. I know this because they are my peers, my extended family and friends to a great extent. He lost the national popular vote in a low turnout election. Trump won in large part because neither Obama nor the Clintons succeeded in building a Democratic Party that was seriously competitive in much of the country.

The big difference as of now is that Trump as president in our system still has far less power than the president in any of the East African countries. He will leave office at by the end of his lawful first term or his second if re-elected.

On balance, I think that we will see American policy in its relations with Kenya in the Trump years to continue to be largely a continuation of that under Obama, as reflected in the American approach to supporting both the 2013 election with John Kerry as Secretary of State and 2017 with Kerry as chief election observer and Rex Tillerson as Secretary of State, with Bob Godec as “our man in Kenya” throughout. Just as Obama’s relationship with Kenya in its policy aspects was primarily a continuation of the approach under George W. Bush.

There have been a few major inflection points in the American/Kenyan relationship in the last twenty years, but most have not been specific to whoever was president in either Washington or Nairobi.

The first,of course, was the al-Queda Embassy bombings in Kenya and Tanzania in 1998, kicking off the ongoing conflict between the U.S. and Kenya against various Islamist “violent extremists”. As reflected in the Mombasa rocket attack, the USS Cole bombing, the bombing in Kampala, the various attacks in Kenya, most notoriously the Westgate Mall and Garissa University killings, a persistent understood risk of terrorist incidents have been a regional “fact of life” since. For most Kenyans who are not well secured in their daily bread, and face many bigger daily risks of violent death, terrorism is not quite so central as is to Americans, but has still inevitably shaped both sides of the relationship over the last two decades. And in this context, after 9/11 and our ensuing land wars in South Asia, with the establishment of the Combined Joint Task Force-Horn of Africa base in Djibouti Kenya resumed its regional security role along the lines established in the 1970s and 80s when the United States was fighting the Cold War and Kenyatta and Moi wanted protection from Idi Amin and Siad Barre and the kind of relationship that would be useful to them in avoiding disruption to their domestic rule.

The next inflection point, albeit of lesser magnitude from an American standpoint, was the retirement of Moi and the transition to NARC and Kibaki.

Next was the demise of NARC and the failure of constitutional reform with the 2005 referendum. Relatedly the Anglo Leasing scandal showed security and counter-terrorism were for sale at high levels along with the baseline of corruption in the police and security services that let terrorists move about and in and out of the country. The Artur Brothers and the Standard flamboyantly highlighted the rot.

Next and finally was the start of the war in Somalia to save and reinstate the Transitional Federal Government and oust the ICU in December 2006.

Since that time the United States Government has continued to have and support all our other existing priorities in Kenya such as lifesaving humanitarian health support through PEPFAR and other lower profile programs, food assistance and small farm agricultural support, along with supporting all sorts of philanthropic type programs and the somewhat more controversial “big development” initiatives like Power Africa, frequently in cooperation with other donors.

In recent years we also started devoted more governmental focus to promoting international private financial investment, such as the 2015 U.S. Overseas Private Investment Corporation investment in the Dubai-based Abraaj Growth Markets Health Fund, L.P., that has been active in the Nairobi private healthcare market prior to recently entering liquidation under circumstances being investigated.

Nonetheless, in the meantime we have been at war in a country with a huge border with Kenya. A country during during much of these last 11 1/2 years which has been too dangerous to support a full diplomatic and aid presence and has thus had those parts of the effort supported from Kenya, as well as a smaller role for Kenya as a host for some U.S. defense forces in addition to those at our base in Djibouti. And from reading the newspapers back in the day and a few books it is apparent that Kenya provided some military support for the invasion by the Ethiopian military at the time to contain potential spread of terrorism.

And in 2011, during Kibaki’s second term, with the support of Prime Minister Odinga, Kenya entered the war directly and formally in its own right.

Roughly nine months later the Kenya Defense Forces were admitted into the AU’s AMISOM peacekeeping collaboration, allowing for financial reimbursement through the Western donors, and eventually drove al-Shabaab, now formally asserting affiliation with al Queda, out of their previous position of direct control of the port at Kismayo (not to say that al Shabaab did not continue to apparently benefit from the illicit charcoal and sugar trade through the port).

A few months before the Ethiopians were invited to restore the TFG in Mogadishu, our Ambassador Bellamy finished his service and Ambassador Ranneberger was similarly appointed by President Bush from the Foreign Service. Within a few months after the start of the war Ranneberger sent a cable to Washington explaining that his approach for “achieving U.S. objectives in Kenya’s elections” was to stay quiet on the debates on constitutional reform and election reform and “build capital” with the incumbent. With the perturbation of the 2008 crisis and the intervention for constitutional reform up through 2010, this has remained the baseline beat of our relationship over the years.

Will the recent moves by Kenya’s dominant new Jubilee Party to align with Communist Party of China structures and philosophy to accompany its huge borrowings from the Chinese State cause any serious rethink in Washington? I have no idea, but it certainly does not seem to have captured any particular place in the priorities of either the retired President Obama or current President Trump.

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

Meanwhile, Uganda is reported “sliding into crisis”

With attention focused on Mugabe’s capitulation to the military and his erstwhile ZANU-PF cronies in Zimbabwe, and the accompanying exuberant popular optimism, the Crisis Group released its latest report of 30+ pages on Uganda as Museveni moves to clarify his status as supra-party, supra-legal supremo.

Here is the link to download: “Uganda’s Slow Slide Into Crisis“:

Crisis Group: Principal Findings

What’s the issue? Popular discontent is growing over President Museveni’s apparent desire to remain in power while governance, economic performance and security deteriorate.

Why does it matter? Uganda is not in danger of renewed civil war or rebel violence, but it risks sliding into a political crisis that could eventually threaten the country’s hard-won stability.

What should be done? The government should hold a national dialogue over presidential succession, enact reforms to the partisan police force, stop post- poning local elections and initiate broad consultations on land reform. Donors should encourage these efforts, while avoiding projects that help perpetuate political patronage.

Museveni has continued to have amazing grace from the United States which has taken a position of official neutrality as he has sought to strong arm his way to another constitutional change to eliminate the 75 year presidential age limit for the presidency.

As AMISOM has indicated its first troop drawdown of 1,000, and more U.S. forces deploy to assist the Somali National Army, Museveni volunteered another 5,000 Ugandans for the Somalia-building endeavor during President Trump’s “Nambia lunch” with African leaders in New York in September. No indication that we want to take him up on the offer, but we seem to continue to hold a stream of various defense-funded public events in Uganda and otherwise seem to desire to telegraph “strategic patience”, “immoral indulgence”, “complacent complicity” or whatever it is that best characterizes our multigenerational intertwining with the M7 regime.

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.

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.”