Ten years after 2008 post election “peace deal” Kenya is a world leader in crime and impunity

Kenya IDP Camp Post Election Violence Naivasha

Ten years ago today I watched television coverage of the “peace deal” signed by Mwai Kibaki and Raila Odinga in the IRI office in Nairobi, on the new K24 television station (owned by the Kenyatta family as I later learned).

I had sent off overnight a briefing memo to IRI’s president as background for a private breakfast confab he was participating in Washington on the “Kenya crisis” in advance of the news of the “peace deal”.  In the memo I explained my assessment of insights from the exit poll we had conducted on the presidential election that had been quashed from public release. For instance, that the poll showed the ODM party candidate Raila Odinga beating the incumbent (and declared winner) Kibaki among both Christians and Muslims, as well as in the overall totals.

One of the indelible memories from that day was watching the teargassing of Kenyans celebrating the agreement and expected end of the Post Election Violence. This conduct by the Police was an enduring legacy and prophetic symbol of continuity.

Uhuru Kenyatta at the time of the settlement had been serving since January as Kibaki’s Minister for Local Government and playing a leading role in city affairs in Nairobi in those days prior to devolution. He was to be appointed Deputy Prime Minister by Kibaki under the deal.  In hindsight this appointment was his functional designation as Kibaki’s successor, although that was not so clear to many of us at the time.  William Ruto, who had been leader of the ODM party’s negotiating team in the mediation process which had failed to close the gap to get to a final agreement, was on his way to serving as Minister of Agriculture as, originally, an ODM appointment in the coalition government, but later switching sides after Kibaki blocked Raila’s effort to suspend him over corruption allegations.  Martha Karua was serving as Kibaki’s Justice Minister, having led the PNU/Government side in the mediation; she resigned in frustration soon thereafter.  She has not found her place in electoral politics thereafter, but has long served as a member of IRI’s Global Advisory Board.

Today, I see news from Quartz Africa that PWC has issued its latest annual report of its Global Economic Crime and Fraud Survey. Kenya has ranked #2 in the world (barely trailing South Africa, and solidly leading the rest of the Big Five: France, Russia and Uganda)! The biggest thing I’ve learned from these last ten years may be that in Kenya, you can get away with pretty much anything (from stealing an election to the vilest of mass murder, rape and mayhem in its aftermath, along with looting the public treasury while millions of Kenyans are parched and hungry).

“[T]o dance on the graves . . .”–KPTJ letter to UK Serious Fraud Office on #Chickengate convictions

By NJONJO MUE, as printed at Business Daily, “Smith & Ouzman director’s crime goes beyond ‘chicken’ offer to IEBC officials”:

Mr Mue is programme adviser at Kenyans for Peace with Truth and Justice.

Kenyans for Peace with Truth and Justice (KPTJ), a coalition of more than 30 legal, human rights and governance civil society groups would like to commend UK’s Serious Fraud Office (SFO) for the successful prosecution of Smith & Ouzman, and two of its directors for overseas corruption, including the bribery of Kenyan election officials to obtain contracts for printing of poll materials.

We write this letter to give our perspective on the impact of corruption on elections. We do this in the hope that you will bring these matters to the attention of the court so that they may inform its deliberations on the sentencing of the directors and the company and the subsequent confiscation hearing.

We would also like to strongly suggest that the SFO call expert witness on this point so that the court can be fully informed about it. We would be happy to provide relevant names of experts in this area should the SFO need such assistance.

KPTJ was formed in the wake of the widespread violence that engulfed Kenya following the disputed 2007 presidential elections.

More than 1,100 people were killed, over half a million displaced from their homes, hundreds of women and men sexually assaulted as well as property worth billions of shillings destroyed in the chaos.

Kenya was saved from a full-scale civil war only by international mediation efforts led by former UN secretary-general Kofi Annan.

The mediation agreed on a raft of measures to address both the immediate crisis and the long-term underlying issues to bring permanent stability to the country, including constitutional and institutional reforms.

A commission of inquiry appointed to review the elections recommended a complete overhaul of the electoral process, including the disbandment of the then Electoral Commission of Kenya (ECK) and a fresh registration of voters.

The ECK was replaced by the Interim Independent Election Commission, the body whose officials Smith & Ouzman subsequently bribed to obtain business from.

The above background is important in order to demonstrate a number of key points.

First, both Kenyans and the international community invested a lot of time, money and hard work to ensure that the devastating political violence of 2008 would never occur again.

This was done through reforming the election management body and the appointment of new commissioners, among other measures.

For Smith & Ouzman to casually bribe  the new poll officials and justify it by claiming that they were just doing  business the “African way” is not just an insult to Kenyans and Africans, it is to dance on the graves of those who paid the ultimate price due to the failed elections.

Second, Kenya has frequently paid a high price in terms of lives lost and property destroyed as a result of disputed elections, the post-election violence being only the most extreme example.

Political violence in turn is often the direct consequence of having elections managed by officials of questionable integrity who cannot be trusted to deliver a free and fair election.

When Smith & Ouzman bribes poll officials to obtain contracts for printing election materials, the country not only incurs financial loss due to the inflated price, but also it ultimately pays a much higher price in terms of the loss of integrity of the electoral body and the subsequent instability and political uncertainty that the loss brings.

As far as financial consequences are concerned, it is notable that Kenya’s elections have been said to be among the world’s most expensive per capita, in spite of their generally poor quality.

Third, an election body, like a bank, survives on public trust and derives legitimacy and credibility not from the technical sophistication of their poll materials, tools and procedures, but from public faith in its impartiality, competence and integrity.

The bribery claims against Kenyan poll officials has resulted in loss of public faith in the agency and may lead to disputed elections and violence in future.
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The War for History: Was Kenya’s 2007 election stolen or only “perceived to be” stolen?

As the ICC proceedings play out, understanding the 2008 post election violence and evaluating the role of the parties, including the international actors, requires addressing the conduct of the incumbent Kenyan administration in the election itself.

In my estimation, those of us who observed the election in Nairobi watched as the vote tally was hijacked in a shockingly blunt manner. If this election could not be labelled as stolen, the question has to arise as to whether any election in Africa, as opposed to in Europe, Asia or the Americas, could ever be so labelled, in a context in which diplomatic actors valued “stability” as a key interest. Nonetheless, some who came to Kenya after the election, both from Washington and South Africa, have continued to suggest that the theft of the election may have been only a “perception” from ambiguity, or even asserting that the election was not “rigged” at all.

Because the truth matters in understanding the violence, and in preparing for the future in response to the Chairman of the current IEBC who has labelled the 2007 opposition as mere “sore losers”, I am going to devote much of my attention in the blog this year to articulating “the rest of the story” as I know it, as I continue to wait for release of additional public records under the Freedom of Information Act. I will dedicate these posts to my late friends Dr. Joel Barkan and Dr. Peter Oriare, who worked for a better process.

To begin, let me post here an August 4, 2008 e-mail I sent to Mike McIntire, the investigative reporter for the New York Times who contacted me on July 31, 2008 for an interview about the International Republican Institute exit poll which remained, as of that date, unreleased as allegedly “invalid”:


After having some time to reflect on our conversation, I thought it might be useful to emphasize a few points in reference to what we talked about and the documents I have provided:

1. Prof. Joel Barkan at CSIS was our primary (indeed only) Kenya expert on our Election Observation Mission. Professor Barkan was independently identified by IRI to be invited based on his stature as an expert and was also one of those specifically recommended/requested by the Ambassador. Prof. Barkan had headed the Democracy and Governance program for USAID in Kenya during the 1992 elections when IRI conducted a very large USAID-funded observation mission and knew Sheryl Stumbras at USAID and the Ambassador well from his work in Kenya .

2. I got acquainted with Prof. Barkan in the lead up to the observation by e-mail as he offered suggestions, and my discussions with him during and immediately following the election were very influential in forming my own opinions about the nature of the evolving situation with the ECK and the electoral tally and the appropriate handling of the exit poll.

3. Prof. Barkan and I were in agreement that IRI was causing a situation in which it was generating unnecessary controversy and likely embarrassment by refusing to release the poll results on the presidential vote on an ongoing basis.

4. Prof. Barkan was impressed with the methodology of the poll and vouched for the work of Prof. Gibson/UCSD.

5. Again, the decision to involve UCSD pre-dated my arrival to manage the Kenya programs. To my understanding, there was never any question that the point of UCSD’s work was to create data that would be relied on and published–no later than the expiration of IRI’s exclusive right to publicity for the first 180 days. It was also my understanding that IRI was pleased to have Prof. Gibson and UCSD involved because of their strong reputation.

6. With the blessing of IRI Washington, including the press office, I had provided data from the IRI September 2007 public opinion survey to Tom Maliti of the AP in Nairobi for work he was doing on tribal issues as a voting factor. My discussions with Tom and the data were inputs for a story he wrote for the AP that fall linked on the media section on IRI’s website. Tom later asked if IRI would be doing an exit poll as we had done in 2002 and 2005 and I confirmed that we were. It was my understanding that we would have to decide WHEN and in what forum, not IF, the results would be released. [If anyone had asked, I would have been of the opinion that given the way things work in Kenya , we would have to expect the poll results to leak regardless.]

7. The Daily Nation ran a story, I believe the day before the election, in which our pollster, Peter Oriare of Strategic, discussed the fact that Strategic would be conducting an exit poll for IRI. While this was not something that I had authorized or been involved in, I did not consider it to be any type of violation of our relationship or against any wishes that I had conveyed to Strategic.

8. I think it is important to look at the exit poll situation in the context of IRI’s Election Observation Mission Final Report which has now been published as a printed booklet (they FedEx’d me a copy with a cover letter from Lorne in mid-July). The report, which I had the opportunity to provide input on, working with my staff in Nairobi on early drafting and through later editorial input on into April when I was doing follow-up work such as the internal exit poll memo of 4-20 that I sent you, is very explicit that IRI found that “after the polls closed and individual polling stations turned over their results to constituency-level returning centers, the electoral process ceased to be credible”. Likewise, the report states that “To date, there has been no explanation from the ECK as to exactly how or when it determined the final election totals, or how and when that determination was conveyed to President Kibaki to prepare for the inauguration.” The report also notes “. . . the obvious fraud that took place during the tallying of the presidential race . . . ” The Executive Summary states: ” . . . IRI has reason to believe that electoral fraud took place and condemns that fraud. The rigging and falsifying of official documentation constitutes a betrayal of the majority of the Kenyan people who peacefully and patiently waited in long lines to vote on December 27.”

9. It should be recognized that between the time that Kibaki was quickly sworn in and the announcement of the initial agreement at the end of February in the Kofi Annan talks that led to the formation of the GNU in April, there were clear indications that Kibaki and his supporters were using the time to attempt to consolidate power. Initial efforts toward mediation from other African leaders, including Bishop Tutu were dismissed, key cabinet posts were filled unilaterally, etc. Even with Annan talks, the Kibaki position on behalf of the “Government of Kenya” was that it was something less than actual mediation.

10. To this day, there has been nothing done to reform the ECK and there has been no accountability for the misconduct discussed in the IRI EOM report. As best I can tell from what I have read about the hearings conducted around the country by the Kreigler commission, the situation remains one in which partisans of the PNU side argue that there was rigging and misconduct on both sides, that it was as bad in Nyanza by ODM as by PNU in Central and that the ECK decision was appropriate, while partisans of ODM argue that the election was stolen. Because “the ECK is not an independent institution and is subordinate to the executive branch of the Kenyan government” [Finding 1 from the IRI EOM report] the IRI exit poll is the best source of actual disinterested data available under the circumstances.

11. To my understanding, I was charged with managing a foreign assistance program that was intended to be for the benefit of the Kenyan people, funded by USAID, but managed by IRI as an independent NGO. To me, this is something entirely different than something the State Department would do on its own for its own internal purposes–although in that case they would still need to be accountable to the American public and Congress.

12. I think we did a pretty good job with limited resources on the actual election observation. I think we did a pretty good job with the exit poll, too. On balance, my experience as Resident Director of the East Africa office was good, with the exception of the specific situation that arose about the exit poll–just as I had had a positive experience as a volunteer with IRI in Central Asia that led me to be interested in making a bigger commitment to go manage IRI programs in Kenya on leave from my primary career. IRI is a fairly small organization in some ways, but they work all over the world, with programs large and small–ours in Kenya was a small one. As best I know, the program in Kenya had a good reputation and had done good, albeit limited, work in Kenya , over a period of years, due in greatest part to the Kenyans on the local staff. This is not anything like what may have happened in Haiti where the program itself may have gotten out of bounds (and in fact I was told that my successor could not be a member of my local staff because of policy in place as a result of that kind of past experience requiring expatriate leadership in the Country Director position). Whatever happened in Washington regarding the exit poll was a departure from my expectations and experience with IRI otherwise.

13. I am told that things have been “different” in IRI recently by people who have been around the organization for awhile, and it is frequently attributed to a hypersensitivity to the situation where John McCain as the long-time Chairman of the Board has been a leading presidential candidate and then the presumptive Republican nominee. This was something that I did not think about in the context of deciding to take the Kenya position at this particular time (and in the spring of 2007 McCain didn’t look very likely to be the nominee anyway). Another twist in regard to Kenya is Obama’s background there and most recently, the things that are circulating against Obama within the “religious right” regarding some notion that Obama was somehow involved in conspiring in Kenya with Odinga on behalf of Muslims against Christians in the context of the Kenyan election and in the context of the post-election violence–laid against a backdrop in which the policy justification for the State Dept. to support Kibaki would presumably tie into the “extrodinary rendition” controversy and more generally the notion that Kibaki has been an ally of the US in sealing the border with Somalia after the engagement of the Ethipian troops to attempt to restore the TFG and otherwise in anti-terrorism efforts, as well as in regard to other regional issues.

14. Ironically, IRI’s mission in Kenya has to a significant degree focused on working to bring minorities, in particular Muslims [the program is primarily funded through NED as opposed to the specific agreements with USAID for the EOM and the polling], into the mainstream of democratic governance. The most striking difference between the voting reported in the IRI exit poll, and what was reported by the ECK is the opposite outcome in North Eastern Province –by the ECK’s reckoning, Kibaki won in a landslide–in the exit poll, Odinga did. I am no expert on that part of the country, but we did do training for candidates in the province in Garissa, the largest town, and in Mombasa for others in the region, and my expectations would have been much more consistent with the exit poll results than with the ECK tally. Given the requirement that a presidential candidate has to get more than 25% in five of the eight provinces, the NEP vote looms larger than it would based on its limited population in a strict nationwide popular vote.


As tourism yields to terrorism, Kenyan government moves to pay Anglo Leasing “ghost companies” for security deals that never materialized, to clear way for more borrowing

Yesterday it was two explosions in the Nairobi’s crowded Gikomba market, one reportedly on a bus and another in a stall. Perhaps a dozen killed and 70 injured.

Two British companies loaded up roughly 400 tourists in Mombasa and flew them home early. U.S. Ambassador Robert Godec told the Associated Press that the American Embassy has increased security measures–more security personnel are being brought in and other staff reduced.

Since the Westgate attack in September, there have been a dozen of these bombings.

In the meantime, Kenyan president Uhuru Kenyatta had directed to pay almost 💲17M to two sketchy entities for claims for financing bogus security acquisition contracts in the Anglo Leasing scam uncovered by John Githongo. After Githongo’s whistleblowing Kenyatta himself as leader of KANU as the official opposition identified the claims as bogus. Kenyatta now claims that the Attorney General dropped the ball and allowed these entities to successfully sue and take judgements in court in the UK. He has directed that payment be made to clear Kenya’s credit to undertake large new borrowings on through the “Eurobond” market. The Law Society of Kenya says that the Government is lying and did not lose in court but rather agreed to pay.

The UK and US criticized the corruption of Anglo Leasing back when it was revealed in 2005-06. Neither the whistleblowing, nor many millions of dollars spent on alleged “good governance” programs seem to have deflected the ultimate success of the scam. . . .

Why would we trust the Kenyan IEBC vote tally when they engaged in fraudulent procurement practices for key technology?

It has been clear for many months that the IEBC’s procurement of BVR kits was irregular.  It is now quite clear that even after Kenyan civil society called the IEBC on the carpet on that problem, the IEBC engaged in clear misconduct in buying the “poll book” system.  When they were caught, the procurement was allowed to go through because of the limited amount of time before the election.  The “poll book” book system largely failed and on election day polling stations used a wholly manual system–a printout on paper.

See the details on the fraudulent bidding here from the today’s Standard: “Minutes reveal how IEBC bought faulty gadgets”:

A review of the tendering procedure by the public procurement regulator found out the tender to supply poll books was awarded to the South African firm, which participated in the Anglo Leasing scandal, on September 29 last year, three weeks before the technical evaluation among the shortlisted bidders.

In other words, the bidding was a sham, because the “winner”, which never could produce a working system, was selected in advance, before the evaluation of which  systems worked–and thus the working systems never had a real rather than a pretend opportunity to be selected over the non-working system.

Getting down into details, the failure of this key procurement left a situation in which much of the presumed value of the Biometric Voter Registration was lost because there was no ability to use any automated voter list at the polls.  The use of the paper print out opens a big window for fraud because one would have to obtain and verify each of the individual print outs from more than 33,000 polling stations to know whether what was used on paper matched up with the central voter registration list in Nairobi (leaving aside the fact that the IEBC never finalized and published a uniform voter registration list as required, which makes the issue doubly important).

I have no way to know whether the IEBC was simply corrupt in its procurement practices resulting unintentionally in the failure of the poll book system, or whether there was some deliberate intent within the IEBC to avoid the application of the electronic system.

Assuming for the sake of argument that no one at the IEBC deliberately wanted to undermine the intended voting systems, it remains quite clear that the IEBC engaged in conduct that clearly violated the public trust in preparing for the election.  So how can we simply trust the same body on the vote tally itself?

One more fraud investigation for Kenya’s public sector . . .

And another one that involves preying on the poor.

Daily Nation“Kenya under probe for misuse of HIV funds”:

Kenya is under investigation for corruption and fraudulent use of money meant for fighting HIV, malaria and tuberculosis donated by the Global Fund.

According to the Fund, a procedural audit in August provided sufficient indications that there is theft, abuse and misappropriation of its money.

The country will also be investigated for rampant diversion of malaria drugs meant for public hospitals into the local and regional markets.

A recent report by the Fund’s Office of the Inspector General says Kenya is among 10 other countries whose routine audits last year justified formal investigations.

According to its charter, the Fund carries out formal investigations when it identifies potential fraud, abuse, misappropriation, corruption and mismanagement.

The Inspector General’s Office also says it has identified instances of organised thefts of anti-malarial drugs in several countries in Africa.

.  .  .  .

A study published in a December issue of the journal Research and Reports in Tropical Medicine estimated that 38 per cent of first line malaria drugs — artemisinin-based combination therapy — sold in Nairobi are taken from government supplies.

Here are the Kenya country grant statistics from the Global Fund website showing that since early 2003 roughly $269M have been disbursed under grants for Kenya.