Don’t be confused: preparations for Kenya’s failed August election election were controlled by Kenya’s ousted “Chickengate” IEBC and its CEO and staff with support of international “partners”

From this blog late last year:

Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.

While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.  

Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)

Update: see Roselyne Akombe’s interview in the Saturday Nation, Credible Oct. 26 election not possible: Akombe” 

Choices and Consequences: Next for Kenyatta’s ICC Defense, October 8 Status Conference [updated]

The International Criminal Court has ruled that Kenya’s President Kenyatta must appear in the Hague for the status conference in his case on the confirmed charges relating to the Mungiki revenge attacks in the eastern Rift Valley during the post-election violence in early 2008. At the time in question he was KANU leader and Kibaki’s new Minster of Local Government following the January 8 appointment of the “upper half” of a new cabinet prior to the African Union sponsored mediation led by Kofi Annan.

The AU process as structured between ODM and PNU negotiating teams stalemated, with the active resistance of key Kibaki “hardliners” and parts of the PNU coalition, including KANU, but Annan was able to get a last minute deal signed off on by Kibaki and Odinga that ended the immediate crisis on February 28.  The settlement led to a Government of National Unity, with the addition of more cabinet ministers and a new, and ultimately temporary position of Prime Minister for Odinga, along with the agreement to appoint commissions to investigate the election itself and the post election violence.

The “Waki Commission” investigating the violence, in an unprecedented display of independence, provided a sealed envelope of key suspects to Annan for potential referral to the International Criminal Court in the event local prosecutions were not forthcoming, along with its extensive public report and redacted annex of persons credibly identified as having a possible individual responsibility for investigation.  (The “Kreigler Commission” followed the ordinary practice of presidential commissions from the Moi era and reported privately to the President, and then released a public report disclosing broad flaws in the overall administration of the election but ducking investigation of the central tally at the ECK headquarters in Nairobi as discussed in Ambassador Ranneberger’s cable here.)

Eventually, Annan turned the envelope over to the ICC, which authorized investigation. Charges were initiated by the Prosecutor against six and confirmed by the Court against four in January 2012, of which one was dismissed by the new Prosecutor.  So how has the defense of the cases been conducted since, or perhaps more descriptively, the counterattack?

Solo 7--Kibera

Solo 7–Kibera

Susanne Mueller’s article from the Journal of East African Studies earlier this year, “Kenya and the International Criminal Court (ICC): politics, the election and the law”, perhaps gives the clearest account of how the game has been played so far:

. . . The ICC began to examine the Kenya situation in 2008-09, well before the 2013 election.  This constituted a potential risk that continued to increase once the ICC received permission to start a formal investigation and the cases progressed.

The election came into play when two of the ICC indictees — Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin — decided to run for president and deputy president… It was an opportunistic alliance of convenience as the ICC had accused both individuals of masterminding the 2007-08 ethnically targeted violence against each other’s communities. Ironically, this union, the negative ethnicity that accompanied it, and the ICC’s involvement also may have partly deterred violence in the 2013 election.

Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC.

The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at trials.

Mueller suggests that understanding the interplay between law and politics in this situation, while very much business as usual in Kenya where “the rule of law is still weak, politicized and hard to enforce [and] individuals are often sanctioned for trying” raises serious questions of much broader international application as the Kenyatta, Ruto and Sang cases play out on a global stage in the arena of treaties, international organizations and international human rights norms.

Within Kenya there have been two momentous court decisions since the 2007-08 election and ensuing violence.  Both were decided at the High Court (the Kenyan trial court, not the Court of Appeal or Supreme Court).  The first was the ruling that President Kibaki was not entitled to unilaterally nominate the new Attorney General and Chief Justice.  This led to the compromise whereby President Kibaki agreed to obtain the consent of the Prime Minister for a new selection for the Chief Justice, paving the way for the litigation of the CORD petition over the IEBC’s administration of the election process and the 2013 version of the central presidential vote tally (with the new Attorney General as amicus on the other side of the case).  The second was the lower court ruling that declined, eventually, shortly before the election date, to decide whether or not ICC crimes against humanity suspects were eligible to run for president under the integrity provisions of the new 2010 Kenyan constitution.  Thus in one instance a High Court stood up, and in another one stood aside, and ultimately the larger questions of power and violence at the highest levels within Kenya have been preserved for politics rather than law.

How will the Attorney General and the Kenyan State conduct itself on the international legal stage at its October 7 status conference, and how will Uhruru Kenyatta, as defendant first, and then President, conduct himself on October 8 at his status conference?  I suspect Kenyatta will go, in his own personal interest as a defendant, knowing that he remains a long way from actually facing trial so far, even though by attending he will be undermining some of the anti-ICC forces he has unleashed in his counterattack on the Court.

For me, one the biggest tart ironies of the whole saga is the recent role of the African Union in joining the attack on the Court.  The crimes alleged arose out of a purely Kenyan election dispute.  If the AU wanted to support the inviolate primacy of the Kenyan presidency, why did it not stay out of the matter in the first place in 2008?  The involvement of the ICC is the result of the settlement brokered by Kofi Annan as AU-endorsed emissary, which was agreed to personally by Kenya’s sitting president at the time!

Ahead of Washington Summit, Setback for Kenya’s Attorney General in pre-trial defense of President Kenyatta at ICC

 

Counting-the original tally

Counting-the original tally; December 27, 2007

“ICC acts tough on Uhuru’s assets, phone records” Daily Nation, July 30.

The International Criminal Court has directed that the Kenyan government be compelled to provide the property and financial records associated with President Uhuru Kenyatta if the government was not ready to fully cooperate.

In a ruling on Tuesday, the judges further unanimously endorsed the prosecution’s revised request that Attorney-General Githu Muigai had contested during the status conference on July 9.

The AG seems to have lost his argument, as the Trial Chamber V (B) ruled that the prosecution’s request was right within the provisions of the Rome Statute of cooperation.

.  .  .  .

The judges further directed the prosecution to “pursue all possible means to get Mr Kenyatta’s telephone records.

. . . .

Of the items that Ms Bensouda had requested she was only able to obtain the details of four the vehicles Mr Kenyatta owned or regularly used between November 1, 2007 and April 1, 2008. These were obtained with the consent of the accused.

In fact, Lands secretary Charity Ngilu, in a letter that was read to the court, said that “doing the best with the resources and time available to us, we have not located any land, title or property registered under the name of Uhuru Muigai Kenyatta.”

. . . .

. . . .

The Chamber also trashed arguments by the AG that the “work of prosecution investigators was being outsourced to the Kenyan government”. The judges, Kuniko Ozaki, Geoffrey Henderson and Robert Fremr, also validated the extensive requests by ICC prosecutors.

“It is a reasonable investigative premise that an accused with access to substantial resources may choose to act through various intermediary entities, as this would in particular, reduce the traceability of transactions intended to further a criminal purpose,” they said.

Githu had dismissed the request by Prosecution Chief Fatou Bensouda as irrelevant to the charges and too broad. The wide-ranging requests, which were made public for the first time late Tuesday seeks disclosure of the President’s records for about three years beginning June 1, 2007 to December 15, 2010.

“Investigations inquiries may not be confined merely to the immediate period of the violence,” the judges ruled. “In the context of certain records, a longer time period may also be justified for comparison purposes where pattern of activity may be significant in revealing unusual communication or transactions.”

This is the second time the ICC Judges are asking the Kenyan authorities to use compulsion to comply with its cooperation obligations to the court. The judges have threatened to refer Kenya to the Assembly of State Parties if it declines to disclose the records.

Already, a separate chamber has issued orders to the govern- ment to compel nine witnesses to testify against Deputy President William Ruto and his co-accused, journalist Joshua Sang. Uhuru’s trial is set to begin on October 7.

. . . .

If you are in Washington for the Africa Summit or otherwise on August 7 you can have dinner with H.E. Kenyatta at the Grand Hyatt from 7-9pm, sponsored by the Corporate Council on Africa, for $200 if you are not a member of the Council, or $100 if your are.  Members (only) may wish to join H.E. Teodoro Obiang of Equitorial Guinea, starting at 6pm that night at the St. Regis.  Perhaps with a good driver you can catch both.  To register follow the links here; the Council is also hosting several less controversial events surrounding the Summit.

 

Listening . . .

Image

Waterbuck

Please excuse my lack of posting. I am taking extra time to read and listen.

In case you missed it, here is Joel Barkan’s list from Foreign Affairs, “What to Read on Kenyan Politics”.

And from AfriCOG: “Why Westgate Is About Governance But Not Security Or The ICC”.

Famed photojournalist Mo Dhillon responds to AU on the ICC trials: “African Unity leading Africa towards disaster”

Sir Mohinder Dhillon, renowned Kenyan photographer, photojournalist and filmmaker shared this new essay which he also submitted to the ICC judges:

“GADDAFI AND MUSEVENI”
Gaddafi and Museveni

African Unity leading Africa towards disaster.

I’d like to challenge the AU to tell me which tribunal or judiciary in Africa will ever convict a sitting Head of State. This attempt to renege on a commitment to the ICC is nothing more than a sinister plot by Africa’s dictators to save themselves from any kind of accountability. It was initiated by the late Colonel Gaddafi, who bailed the AU out of a financial crisis, thereby buying the loyalty of other African leaders whose necks were also on the line. To save himself from international justice, he wanted Africa out of the reach of the ICC. Shame on such leaders! Contrary to any suggestion of restoring national sovereignty, the aim of these people is for Africa to be out of the Rome Treaty so that they can continue with their evil intentions where money and power counts for everything and the ordinary African can rot.

Our memories in Africa are very short, particularly in the case of perpetrators of genocide, rape and murder. Those who support the AU line that accused Kenyans should be tried locally should remember that not so long ago Parliament and other local bodies preferred to hand over cases to ICC. Remember the slogan that was on the lips of all Kenyans:  “Don’t be Vague, Ask for Hague”. Kenya was given 12 months to put their act together and they did not move an inch. Kenyan authorities were going to investigate several thousand of other perpetrators but none was investigated due to lack political will despite some of perpetrators were recognizable carrying out crimes against humanity. AU is becoming laughing stock in promoting impunity.

The early history of Kenya’s ICC cases seems already to have been forgotten. After the post-election violence in 2008, the Peace Accord appointed the Waki Commission which produced 529 pages report on 16 July 2009 along with 6 boxes of documents and supporting material. A sealed envelope containing names of those considered most responsible for the violence was given to Kofi Annan as mediator.   Kenyan Government tried for one year to establish a local tribunal but parliament blocked this, leading to the involvement of the International Criminal Court.  The ICC Prosecutor, Luis Moreno Ocampo opened the envelope, inspected its contents and re-sealed it, before proceeding at Kenya Government request to carry out investigations and develop the resulting cases for ICC.

Kenya must smell the rat behind the intentions of our neighbours in Ethiopia, Uganda and Sudan, who are guilty of gross human rights violations in their own countries. Most recently, these include muzzling the media and arresting journalists and civil rights workers, but there is a long track record of crimes against humanity in each country. The AU has failed miserably to bring the perpetrators to book, as have the local judicial systems.

Until fifteen years ago, I filmed all the OAU meetings since its inception in 1963. For most of that time, the fight against apartheid in South Africa was the only factor that held this organisation together – otherwise I’m sure it would have disintegrated. It is a matter of record that crimes against humanity on the rest of the continent have far outweighed the evils of apartheid both in terms of scale and sheer lack of accountability. Why the double standard?

It is abundantly clear that most of Africa’s leaders are more concerned with protecting themselves than they are with securing justice for ordinary people. Although we in Kenya have made enormous strides in securing personal freedoms over the last twenty years, I am deeply concerned about the negative influence of our dictatorial neighbours in Uganda, Sudan and Ethiopia, where media houses are being closed down for flimsy reasons, where opposition is not tolerated and large numbers journalists and activists languish in dungeons without being charged. Kenyan genocide victims need closure just like the victims of Charles Taylor in Liberia, where the ICC was applauded for a job well done. There can never be adequate compensation for loss of life, limbs or dignity but at least some measure of justice was served.

Members of Kenya’s Government are shouting empty slogans about protecting their sovereign rights, in complete contradiction of their earlier position. I trust that the Kenyan people can see for themselves the total insincerity of those who are driven by nothing more than fear for themselves, and total disregard for the victims of violence. . . .

Here is the whole document: African Unity leading Africa towards disaster (5)

 

US offering reassurance of support for ICC process on Kenya

Sunday Nation:  “Envoy: US will veto deferral of Kenyan ICC case:

The Obama administration will block any attempts to halt trials of post-election violence masterminds at The Hague, a decision which means government efforts to get the process deferred at the UN are almost certainly doomed to failure.

Outgoing US ambassador Michael Ranneberger told the Sunday Nation Washington would not back any delay of ICC action.

“The American position is that we want the ICC process to proceed expeditiously. We do not want to see the process delayed. We think that carrying through with the trials is absolutely crucial to fighting impunity and to ensuring accountability.”

The US holds veto power in the Security Council and a rejection of the petition by any one of the five permanent members of the Council means the appeal would stand defeated. Highly placed diplomatic sources also indicated that Britain and France were unlikely to support the Kenya bid for deferral.

Mr Ranneberger stopped short of stating that the US would apply its veto power when the deferral request comes up at the UN. But he said the Obama administration wanted The Hague process to continue without interruption.

“We never say in advance what our positions are to be (at the UN) so obviously I can’t say that we will veto. What I would say is that we do not see this effort to seek deferral as positive and we support a continuation of the process and we want to see the process move ahead expeditiously.”

Sunday Standard:  “Ranneberger explains why US backs The Hague process”:

Ranneberger: Let me be very clear. The US supports the ICC process and the reason is simple: There must be accountability for the post-election violence. Terrible crimes were committed, Kenyans deserve justice and it’s gone to the ICC and that process needs to be carried through. Our deputy secretary of state was very clear in his public statements that we support this process.

Q: Kenya is lobbying the permanent members of the UN Security Council, if that is put to the vote, what will be US’s likely position?

A: Nobody in the Security Council ever announces the answer hypothetically. The ICC process is vital to countering impunity and to ensure that type of violence never happens again. One of the biggest problems in Kenya and one of the things that have held this country back for so many years is the culture of impunity. And so these issues simply must be addressed.

Warning That U.S. might cave on ICC for Kenya and Sudan

Africa Confidential’s February 4 “free article” titled “Rewards and Realpolitik” should be troubling to those in civil society in Kenya and in the West who, like I do, consider the pending ICC prosecutions in Kenya to be crucial for addressing impunity.

Africa Confidential suggests that the United States and France are giving serious consideration to acting in the U.N. Security Council to agree to defer prosecution of Sudan’s al-Bashir as part of the “carrot” approach endorsed by Envoy Gration and others to try to maximize his cooperation on the split with the South and on Darfur. Reportedly some detailed conversations at high levels of the State Department have taken place. A Sudanese source reportedly says that a deferment for the “crimes against humanity” charges for the six Kenyan suspects would be thrown in as part of a deal with the AU to provide diplomatic cover on accusations of a “double standard”.

Please take time to read the whole detailed article and weigh in if you care about this.

David Throup of CSIS wrote a useful thumbnail overview of the post election violence in Kenya and the underlying ethnic and political tensions. While David was controversial as an outspoken critic of the EU election observation in Kenya, it should be noted that his own calculations as initially discussed publicly in Washington had Kibaki losing the election and claiming victory through fraud, so in that sense he has been part of the overall international consensus regarding the voting. The crucial point is that there were different types of violence that happened for different reasons–thus demanding a differentiated response as reflected in ICC prosecutor Ocampo’s selection of cases to bring forward.

“The International Criminal Court and the Post-Election Violence in Kenya” by David Throup at CSIS’s Online Africa Policy Forum Blog.

Most Kenyans, according to opinion polls by the local press, however, believe that the six named individuals should be prosecuted. They are right–the era of impunity must be ended. Most of those displaced in 2008 still remain in encampments, too frightened to return to their homes. The next election may well be even more closely contested and violent unless a clear message is sent that the era of impunity is over and that perpetrators of violence will either be tried in Kenya’s courts or appear before the International Criminal Court. Both Kalenjin and Kikuyu as Kenyans have the right to live and farm in the Rift Valley and in other parts of the country. As Kenya becomes more ethnically intermixed, ideas of ethnic hegemony and arguably the era of ethnic-politics can no longer be tolerated.

There is, however, one danger. William Ruto and Uhuru Kenyatta are “big men”. . . The ICC preliminary charges may possibly intensify ethnic identities, uniting the Kikuyu and Kalenjin communities in a joint sense of persecution. Uhuru Kenyatta and William Ruto are highly regarded in their communities and would constitute a formidable alliance at the next election. The ICC and the international community should proceed with caution and encourage moderate voices which urge compliance in the hope of a better Kenya.

As far as Kenya goes, the perception that Ruto and Kenyatta and associates, with Kibaki’s help, successfully faced down the ICC and the international community generally, seems to me to be about the worst thing that could happen in terms of enshrining impunity and deterring further reform efforts by Kenyan citizens and civil society. Even if the Administration takes the approach of protecting al-Bashir, it would seem especially cowardly to sacrifice Kenya in the mix for the reasons suggested here.

The human rights community in the U.S. seemed to be caught off guard when the Administration issued blanket waivers for countries employing child soldiers, so presumably they will not be complacent now.

Prime Minister dismisses Kenyan Parliament vote against ICC process

Radio France International has an exclusive interview with PM Raila Odinga on the nearly unanimous vote in Parliament calling for Kenya to withdraw from the ICC:

The motion was passed during a late night session – with some MPs  labeling the ICC as “colonial” and “anti-African”.

But Odinga told RFI that nobody should pay attention to the motion.

“It cannot help anybody because the process that has started cannot be stopped, even if the country were to decide to pull out of the ICC today,” Odinga said.

“This is part of our constitution which requires a referendum to change … A mere vote in parliament is just an expression of opinion and does not hold any legal weight.”

Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya

“People, it is THREE YEARS since the election, isn’t it . . . ”

Surely it is a simple choice between the ICC and impunity at this point. Every Kenyan is is entitled to his or her opinion as to what is best, but it would be unfortunate to be diverted into fantasy in looking at the way forward. Who is it that said that the ICC process was ideal or perfect? The choice of the ICC was made with eyes open. It is only the desire to preserve the ground rules that accountability can only go so high, that certain “champions” are untouchable, no matter what they do, that has triggered the “buyers’ remorse” we are seeing now with the choice of the ICC.

Remember that the Truth Justice and Reconciliation Commission was sold as an alternative to legal trials. Now we see that Parliament was sitting on a report calling for Bethwel Kiplagat to be investigated for an alleged role in the Ouko murder when they approved him as head of the TJRC. I don’t buy the idea that any local tribunal now in Kenya could take on the highest level of suspects in the post election violence, and I think that is the whole point.

A year of “AfriCommons”–what’s changed and what has not

I have been at this blog a year last week, so it is probably a good time to reflect a bit. This is probably best done off line, but I’ll take a quick start at sharing some impressions. I have a lot of partially drafted or mostly drafted posts that have been set aside in the course of keeping up with breaking developments, with my time constraints as an amateur, so I’ll go ahead and fire this off a week late rather than refine it further.

The biggest development for Kenya in the past year was been the passage of the new constitution, without doubt. Most of the impact remains an expectancy, as the old political order and a new legal order crunch against each other.

This week we are seeing the limitations of the old order “coalition”, “power sharing” or “unity” government model in the face of the possible ICC indictments for crimes against humanity related to alleged leadership roles of the six suspects named by Luis Moreno-Ocampo. To the degree to which there is unity or commonality among the various players in the government, it is at a “least common denominator” level when it comes to imposing accountability–the one thing agreed on is that leading political figures should not be accountable. Things are getting ugly as it becomes quite clear that the idea of cooperating with the ICC was never a serious consensus commitment and the failure to establish a local tribunal or otherwise pursue prosecutions for the post election violence (or vote fraud) was not based on a belief that the ICC was a better route to justice.

Likewise we see that the old Government of National Unity is not prepared to act responsibly in moving forward in implementing the new constitution, presenting challenges and dangers as we look ahead to 2012.

Outside of politics, Kenyans have revived their economy and are moving ahead in spite of the baggage of the political system.

On balance, while the existing government continues to be overripe, I am more encouraged about the intermediate future for Kenyans than I was a year ago.

From the U.S. standpoint, the Wikileaks fiasco is superficially the biggest new thing and is going to dampen a lot of holidays for our public servants I am sure, but I am hopeful that things at least will not get worse. Our overall international reputation will get better as we do better, and I suspect that on balance people around the world will be left with a general impression no worse than whatever it was beforehand. To the extent that our policies are known, I agree with most of what my country does most of the time, but like any citizen of a democracy have my dissents. I personally don’t get to read any of the leaked classified documents because I have, for extraneous reasons, a clearance that would let me read them if I had a “need to know”–thus I am at a disadvantage to other readers of the international newspapers.