Best overall international piece so far on Kenya Supreme Court decision

Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”

One of the most important lessons from today is how cowed Kenya’s media really is by the Government.  This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres.  But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.

Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.

For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.

“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).

Are the Goodyear bribes in Kenya, as disclosed in US Foreign Corrupt Practices Act case, disappearing into Kenya’s “black hole” of impunity?


tyres in Lamu

Tyres in Lamu


From Nairobi’s Business Daily of February 26, 2015, “Big names face scrutiny in Goodyear bribes scandal“:

Top Kenya government officials are on the spot once again for pocketing more than Sh138 million ($1.5 million) in bribes from a subsidiary of American tyre firm Goodyear Tire & Rubber Company, US regulators said.

The bribes were paid in exchange for the award of multi-million shilling tenders to supply tyres to some of Kenya’s largest state corporations, government agencies and public listed firms.

The US Securities & Exchange Commission (SEC) said Goodyear paid the bribes to Kenya Ports Authority (KPA), Armed Forces Canteen Organization (Afco), Nzoia Sugar, Kenyan Air Force, Ministry of Roads, Ministry of State for Defence, East African Portland Cement Company (EAPCC) and Telkom Kenya executives to win contracts.

US detectives also established that additional Sh1.3 million ($14,457) was dished out to lure Kenya Police and City Hall officials to award the Ohio-based tyre maker multi-million shilling deals.

The corrupt dealings, committed between 2007 and December 2011, were executed through Treadsetters Tyres Ltd, then a subsidiary of Goodyear.

Goodyear made the illicit payments to Kenyan officials in cash and recorded the spending in its financial books as advertising expenses, according to a forensic audit by the SEC.

“Treadsetters’ general manager and finance director were at the centre of the scheme,” the SEC said in its filings. “They approved payments for phony promotional products, and then directed the finance assistant to write-out the checks to cash.”

The well-orchestrated bribery ring involving Kenyan bureaucrats is captured in a ruling in which Goodyear has agreed to pay a Sh1.48 billion ($16.22 million) fine for engaging in corrupt practices abroad.

The allegations were disclosed by Goodyear in 2012 and hit the Kenyan press in a significant way when the SEC fine was announced almost eight months ago.  Many of the disclosed bribes were paid to Kenyan national security officials.  In the meantime, we see more successful terrorist attacks and insecurity, but no further news on anything being done to suggest that the Government of Kenya has any substantive intention of treating these bribes as unacceptable.

Where is Kenya’s Ethics and Anti-Corruption Commission? Where are Kenya’s journalists and media houses in following the stories they reported? (would be pleased to hear if I’m missing something . . .)

And where is my government?  I’m proud of my country for policing our own companies through the Foreign Corrupt Practices Act, but it has been sad to see our support for a “reform agenda” in our relations with Kenya seem to run off into a ditch.

“Faded Aid”

New Ipsos Kenya poll: Major loss of confidence in institutions; cost of living remains dominant concern

Today’s release of the latest quarterly “barometer” poll of public opinion from Ipsos Kenya indicates two cross-cutting themes in how Kenyans see public affairs.

First, since November, public confidence has declined in essentially all major institutions, from already generally low levels. Conspicuously, in a measure of progress of reforms under the new constitution, only 12% of Kenyans expressed “a lot” of confidence in the judiciary versus 19% who had “none”.  For the police, 11% had “a lot” of confidence versus 29% who had “none”.

Second, the cost of living remains the most important issue to far and away the largest percentage (50%) of Kenyans. This has been the case for years, and the lack of focus on this issue in the Kenyan and international media, in Kenyan politics and government, and in international policy discussions may well give insight into why Kenyans have little confidence in their institutions. Unemployment (19%) and corruption (9%) are second and third in the “most important issue” question.

See the Ipsos Kenya summary statement and the entire detailed poll presentation.

Worth noting:  Oxford’s Dr. Nicholas Cheeseman offers a critique of ODM’s slide to it’s current low ebb. The latest poll indicates a wide field for a strong opposition party, with continued economic stress facing most Kenyans and little satisfaction with the institutions in power, but ODM will need to find a coherent message and credible voice to rebuild its stature.  The Standard editorializes that “Chaos in ODM is a matter of national concern.”  The Star says “Time for ODM to Re-Invent Itself.”

Also of interest: Andrew Sullivan asks “Why Doesn’t USAID Win Any Friends?”.  Sullivan cites a Reuters piece by Paul A. Brinkley entitled “How to fix foreign aid”:

.  .  .  .

The first step is to end the State Department’s management of foreign assistance, and return to an earlier organizational system in Washington.

The Foreign Service plays a crucial role in the establishment and implementation of U.S. foreign policy. But diplomats are not program executors. The culture of diplomacy, so crucial to negotiation and resolution of conflict, is completely wrong for managing economic development programs. Much less the tactical business development necessary for economic growth.

The primary instrument for implementing foreign assistance, the United States Agency for International Development (USAID), was moved into the State Department in 2005 — in a misguided effort to better align its programs with security and counterterrorism policies. The verdict is now in on this transition. USAID is not effective in carrying out its principal mission: delivering cost-effective outcomes that advance U.S. foreign policy goals.

.  .  .  .

The priority of the State Department — from staffing, to allocation of resources, to a forbidding security posture that inhibits local engagement of war-torn populations — is to fulfill a diplomatic mission. Not to run foreign assistance programs. Realigning organizations, like this move of USAID into State’s sphere, is a poor means of carrying out presidential policy.

A Guest Post on the State of Kenya@50: “Where Did The Time Go and What Do We Have to Show For It?”

Following is a “guest post” from Andrew J. Franklin, an American now leaving Kenya after more than thirty years of Kenya’s fifty year independent history. This was originally written back in May, after the election failures but months before the Westgate fiasco, about which we learned more damning information with the report this week from the review by the NYPD:
Kenya Map at Nairobi School

It’s mid-May, do you know where your election results are?

Good question! As Kenya prepares to celebrate 50 years of Independence – and, remarkably for Africa, largely free of tribal massacres, wars, natural and/or manmade disasters, successive failed or successful military coups d’etat, vicious secret police operations or state sponsored “disappearances – this steadily failing state is increasingly unable to conduct normal run of the mill governmental functions.

The GOK was able to carry out a national census until the late 1990s, deliver mail and inland cables, find the owners of automobiles allegedly involved in traffic offenses, pay pensions, etc. The more international assistance and support for the GOK and its myriad associated agencies, parastatals, universities and authorities the faster state operations have deteriorated.

The incredible investment in “IT” prior to the 2013 General Elections was not only supposed to prevent or mitigate electoral fraud but was also a belated recognition of just how bad government administration had become.

The IEBC was unable to organize or conduct “voter education” prior to the March 4th polls and is probably unable to find all 120,000 (?) temporary workers hired for these elections; media reports indicate that election- related pay owed to the police, NYS recruits and prison warders has still not been paid.

In essence it is an amazingly foolish leap of faith to expect the IEBC to release any election results for President, Governors and members of the National Assembly and Senate. The longer these results are kept from the public the greater will be arguments that these elections were stolen; 50% of the country is already on a slow boil and the new administration is clearly not able to handle long simmering insecurity in Mandera, Garissa and Wajir Counties or in Western Kenya where criminal gangs are terrorizing the populace.

Reports of a resurgence of Mungiki in and around Nairobi as well as continuing MRC related activity in the “Coast Province” counties – including Lamu – show that the state of national insecurity is more serious than anyone will publicly admit. The heavy handed response on Tuesday, 14/05/2013, by some 400 “security personnel” drawn from the disparate forces within the “National” Police Service to only 250 noisy demonstrators – and 15 or so pigs and piglets – outside Parliament showed an usual lack of any police command and control.

Meanwhile the Obama Administration seems blissfully unaware or unconcerned of the situation in Kenya; our bureaucrats just seem to be hunkering down and covering their asses.

Reports that the police fired live ammunition to “break up the crowd of peaceful demonstrators” after tear gas and water cannon proved “ineffective” indicates a lack of discipline or concern for innocent bystanders or onlookers in offices, shops or even the carparks in the vicinity of Parliament right smack in the CBD!

The use of live ammunition to quell demonstrations in Kisumu in the aftermath of the Supreme Court decision on March 30th elicited little comment in the domestic media and certainly no public protests from the US Embassy. Apparently the rubber bullets procured by the NPS prior to the elections are still in their original packing?

The bottom line is that “Something’s happening here. What it is, is very clear…” To Some!

Andrew J. Franklin, J.D.
Former U.S. Marine, resident of Nairobi since March, 1981

Will Kenyan Military Engagement in Southern Somalia Disrupt Kenyan Reforms?

Readers will undoubtedly be following the news of the Kenyan military moving to challenge al-Shabaab well across the border in southern Somalia.  I don’t feel that I have anything particularly profound to add to what is readily available on the direct events, but I did want to suggest some questions that need to be considered as to how this military action will interact with democracy and governance at a critical time in Kenya.

In Nairobi, three names have now been passed to the President and Prime Minister for consideration for nomination to chair a new Independent Electoral and Boundaries Commission.  Preparations for the next election are running behind as is the overall “reform agenda” including other key aspects of implementing the new Constitution.  There is progress in some areas, “backsliding” in others, and time is short.

The threat of terrorism by Islamist extremists has been a part of the fabric of Kenyan governance and international relations for a long time now, especially since the 1998 Embassy bombings.  Al-Shabaab has been willing to starve civilians and commit a variety of atrocities on Somalis, and engaged in external terrorism in Kampala last year.  Kenya has a right to be concerned and a right and obligation to protect its citizens and territory.  At the same time, it would be naive not to recognize the potential for this new military action to distract and divert resources from other critical work that needs to be done within the Kenyan government.

Likewise, this new environment will present a big challenge to the United States, and perhaps to the UK and EU in supporting the reform process.  We went through this before in 2006 and 2007.  Compare U.S. criticism of corruption in the Kenyan government before and after the Ethiopians invaded Somalia in December 2006.  (I have no evidence of any correlation between the dramatic change in tone on corruption and events in and relating to Somalia–and no one has ever suggested one to me.  But then, no one has really offered any other clear explanation either, so I have had to wonder about this.)  Heightened military interaction with Kenyan forces could in theory make it harder for the U.S. to push consistently for reforms in Kenyan governance or lower reforms on the list of U.S. priorities.  To me, reform is the best medicine to fight the threat of terrorism and regional instability, and terrorists will always have access to Kenya as long as key pieces of the Kenyan governance structure can be purchased.  But sometimes it is hard for us to keep our eye on that ball when there are challenges from immediate disruptions.

An then there is the upcoming election itself.  If it was ultimately “best not to know” who won in 2007, how much risk can be tolerated to try for a freer and fairer Kenyan election in 2012?

East Africa ranks fourth of five regions in 2011 Mo Ibrahim Foundation Governance Rankings–Tanzania, Uganda and Kenya each move up from 2010

2011 Governance Rankings for East Africa
Rank (of 53-followed by raw score)

4th Seychelles 73
13th Tanzania 58
20th Uganda 55
23rd Kenya 53
25th Rwanda 52
29th Djibouti 49
31st Comoros 47
34th Ethiopia 46
37th Burundi 45
47th Eritrea 35
48th Sudan 33
53rd Somalia 8

Here is a link to a summary brochure of the East Africa findings.

Here is my post from last year’s release.  Tanzania has moved up from 15 to 13, Uganda from 24 to 20 and Kenya from 27 to 23.

Odinga in Washington; U.S. in Libya; “Kinetic Action” v. MCC

Here is the link to a multimedia page for Raila Odinga’s speech and Q & A last week at CSIS in Washington.  Nothing newsmaking in itself that I saw, but a good speech of interest to those following governance and democratization issues in Africa and especially Kenya and Ivory Coast.

In the meantime, one of the most telling things I have read about how our actions in participating in the Libyan mission are viewed by others is from Bruce Reidel at Brookings:

The Indians are puzzled that some in the West who had embraced Qaddafi less than a hundred days ago are now so shocked by his cruelty. Qaddafi did not change in 2011. Some former Indian diplomats are quick to suggest that the Libyan war shows America’s “unreliability” and a tendency to over react to the last news broadcast. Who are the rebels in Benghazi, they ask, that are now your allies? Why do you rush to help them, and not the shia protesters in Manama?

As one Indian observer put it, “the U.S. is both promiscuous and flighty” with its relationships.

“A Letter from Agra:  How India Views U.S. Actions in Libya”

These observations on the Indian view were published almost a month ago.  If the NATO effort in Libya bogs down, we may find ourselves asking more rigorously, “why exactly did we decide to do this?” and “what specifically were we trying to accomplish originally and what specifically are we trying to accomplish now?”.  Those same questions that eventually became “known unknowns” in Iraq.

In the meantime, The Hill caries a piece by Paul O’Brian of OxFam America on potentially critical budget cuts for the Millennium Challenge Corporation.  No one at the MCC could afford to make the comparison politically I am sure, but let me make it for them:  look at the cost of the Libya action versus the cost of the MCC.  The MCC would seem to have bipartisan support if any area of development can.  A George W. Bush initiative originally, but very compatible with Democratic “soft power” thinking and led by Obama appointees now.   A relatively small staff and bureaucratic footprint.

In geopolitics, and in longer term development, we need to pay some real attention to states, but if this is a humanitarian effort don’t we need to look also at the numbers of people involved: is this worth the cost relative to the cost of other “kinetic” or “non-kinetic” endeavors?  Ivory Coast, for instance, is a much more populous country.

Constitutional Debate on Constituency Development Funds in Tanzania

Bora Kujenga Daraja (better to build a bridge) discusses the filing by a group of civil society organizations of a lawsuit challenging the constitutionality of new legislation in Tanzania creating Constituency Development Catalyst Funds, or Mfuka wa Majimbo. [h/t to Global Integrity  on Twitter]

Here is an introduction to the Daraja organization that sponsors this blog from their website:

Daraja is a new organisation that aims to make positive changes to life in rural Tanzania by bringing people and government closer together. Our name reflects our approach – Daraja comes from the Swahili word for bridge.

In rural Tanzania, local government has a responsibility to listen to the community and to deliver public services that meet local needs. We want to make sure local government fills that role. We want to make the system work.

The argument in the lawsuit is that the legislation violates the Tanzanian constitution by inappropriately crossing the separation of powers by giving legislators executive authority, rather than legislative oversight, over these funds:

A few days ago, a group of seven civil society organisations, including Policy Forum and the Legal and Human Rights Centre (LHRC) filed a case with the High Court of Tanzania, arguing that the act establishing the Constituency Development Catalyst Fund, or Mfuka wa Majimbo, is unconstitutional. In doing so, they are following the lead of other organisations raising challenges to similar constituency-based development funds in other countries.

But this move is far from being universally popular. MPs from all major parties supported the CDCF bill. One MP – Dr Faustine from Kinondoni – used his personal blog to criticise the CSOs’ case, arguing that the CDCF has been a very effective way of quickly solving problems in his constituency. . . .

And this view can perhaps claim some academic support from a surprising source: the DFID-funded African Power and Politics Programme (APPP), who have been looking into the idea that governance reforms should build on what exists and should be rooted in their socio-cultural context. Perhaps it’s better to give MPs a means of fulfilling constituents’ expectations and to find ways of ensuring it’s well managed, accountable and more than just a slush fund, rather than to insist on western governance niceties in a very different context. “Going with the grain” is the slogan of this approach.

I have a lot of sympathy for going with the grain. But surely it applies more to governance reforms at the administrative level – focussing on things like budgeting and financial management systems – than to such a fundamental distinction as that between the executive and the legislature. After all, the constitution is supposed to prevent misuse of power by the government and MPs, which is exactly what these CSOs are trying to use it for.

And let’s not forget, MPs are hardly powerless to “bring development” to their constituencies. They have the most influential seat on the council, which sets the budget for local development projects. And if that system is too slow and bureaucratic for them to use in response to local demands, MPs are better placed than almost anyone else to make the system work better, since they also have a roll in setting the national budget and national laws and policies.

For civil society there’s also a rigourous debate about tactics going on here – also a question of following formal processes or going with the grain. Launch a legal challenge to bring the law down, or focus on monitoring how the CDCF works in practice. In Kenya, for example, such monitoring has uncovered widespread abuses and I hear this has led to some MPs concluding that this type of fund is more trouble than it’s worth. It doesn’t have to either/or, of course; it could be both legal challenge and monitoring, but that takes twice as much effort.

Dancing with the Data We Have

Daniel Kaufmann draws lessons from the events in the Middle East:

‘Tunisia, Egypt and Beyond:  Fewer Predictions, More Data and Aid Reform Needed,’ The Kauffmann Governance Post

The Worldwide Governance Indicators (WGI), which has been compiled since the mid-1990s, measure six components of governance. One very important component is Voice and Democratic Accountability (V&A). The V&A indicator measures not only whether countries hold elections, but also whether these are truly contested, legitimate, free and fair, whether the government is accountable to its citizens, and whether there are basic freedoms of expression and association, including protection of media freedoms, of civil society, and against human rights abuses.The sobering reality is that in terms of Voice and Democratic Accountability, the Middle East has rated very poorly relative to the rest of the world for many years. With very few exceptions, there is little variation on this indicator across the region. Worse, even though the region began the past decade underperforming on V&A, most every country in the region has deteriorated since and ended the decade at even lower levels of V&A.

Figure 1 below shows the extent to which the Middle East has been afflicted by a severe deficit in accountability. In fact, all Middle East countries, with the exception of Israel, rank in the bottom half of the world on V&A. Within the Arab world, Lebanon and Kuwait are above the rest, but still remain in the bottom third globally. The remaining Middle East countries perform even worse, in the bottom quartile (25th percentile or below) in the V&A component, including Tunisia and Egypt (both underperformed rather similarly). Countries like Iran, (North) Sudan, Syria, Saudi Arabia and Libya rank among the very bottom (10th percentile or below).

From a broader global perspective, Egypt’s percentile rank, at a lowly 15.6 (out of a maximum of 100) in 2009 (meaning that over 170 countries around the world rated above Egypt) compares extremely poorly with countries like South Africa (67th percentile), Brazil (62), Ghana (61) and Indonesia (49). By the end of the decade, Egypt rated similarly in V&A to countries like Cote d’Ivoire, Angola and Congo.

So here we have a comparison of the Voice and Accountability measure from the World Governance Indicators for the five countries of the East African Community, plus Sudan and Ethiopia, along with Tunisia and Egypt (for 2009, the most recent):

Tanzania–43.6

Kenya–37.4

Uganda–33.2

Burundi–28

Egypt–15.2

Ethiopia–12.3

Rwanda–10.9

Sudan–6.2

Libya–2.8

To prepare for the Uganda election February 18, here is the full Uganda Country Report for the World Governance Indicators with links to the sources of the original data.

Dr. Kaufmann goes to look at aid spending:

. .  .  .  Let us look specifically at how donors have responded to the democratic deficit in the Middle East over the past decade.

On aggregate, as Figure 2 indicates, donors have been oblivious to poor democratic governance in the region. In fact, while Voice and Accountability have deteriorated over the past decade, aid increased significantly, even when excluding the ‘special case’ of Iraq from this sample (from US $6.2 billion to $10.5 billion). In fact, almost all of donor development aid is channeled to Middle East countries that have low democratic accountability by the standards of other developing countries.

Are we doing any better in East Africa or are we ‘oblivious’ as well?  Simply looking at the “Voice and Democratic Accountability” scores raises obvious questions . . . .