Battle over Kenyan election corruption has commenced with vote in Parliament to ban the French vendor OT-Morpho/IDEMIA

IDEMIA f/k/a OT-Morpho before a name change (and previously Safran Morpho before the French defense conglomerate sold this division to the French technology group Oburthur Technologies in a transaction closed shortly before August 2017 Kenyan election) has been a fixture of the past two Kenyan elections.

I have written about issues involving these procurements numerous times over the years and am continuing my engagement with the USAID Freedom Of Information office in their review and processing of public information from USAID support to the Kenyan IEBC in the 2013 election, from my request in 2015. (So far they have processed and released or withheld about half of the records sent from Nairobi to Washington by early 2016. They continue to assure me that they are working away at this.)

See: Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows U.S. paid for failed Results Transmission system.

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.

Nigeria example shows why U.S. and other donors should act now on election technology procurement fraud.

USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers

Last July IDEMIA dismissed without explanation a defamation suit it had filed against Raila Odinga and other NASA coalition leaders in April 2018 shortly after Raila’s “handshake” with Uhuru ended high level political contention over problematic KIEMS system IDEMIA had sold the IEBC in March 2017. The court records I reviewed indicted a unilateral dismissal rather than a settlement.

The judgment of the Supreme Court in the 2013 election petitions of AfriCOG and the opposition found that there was evidence of procurement fraud with the failed technology acquisitions, and ordered an investigation, but the IEBC, Kenyan prosecutors and donors all failed on that account. OT-Morpho, n/k/a IDEMIA once again was chosen in an opaque and controversial procurement process for the bigger 2017 “integrated” system. (I was told by the USAID press office that USAID did not finance the KIEMS purchase for the IEBC for 2017.)

But finally today, reports the Daily Nation, “For credible elections, MPs vote to block Huduma Namba firm“:

Members of the National Assembly voted on Wednesday to block technology firm IDEMIA Securities from doing business in Kenya for at least 10 years, citing violation of the Companies Act.

The move complicates the ongoing Huduma Namba registration, as the contract was awarded to the French firm at Sh6 billion.

. . . .

The MPs amended the report of the House Committee on Public Accounts on the audited accounts of the Independent Electoral and Boundaries Commission (IEBC), to have the technology firm held accountable for irregular payments it received during the 2017 general elections.

So who “went native”? The Ex-Ambassadors’ greatest hit: “Sweet Home Kenya” [updated]

Could one make a case that perhaps it was not me after all, but more the Ambassador and/or others at the State Department who “went native” in Kenya over the 2007 election controversy (and in other situations)?

Interesting to think about as things have played out.

My memory was most recently jogged in seeing that James Swan, a distinguished diplomat who served as Deputy Assistant Secretary of State for African Affairs and signed off on some of the materials related to the 2007-08 Kenyan election controversy that I have obtained through FOIA and written about here over the years, has retired to a Nairobi post with the Albright Stonebridge Group business/investment advisory. (Albright Stonebright Group offers “commercial diplomacy” and advisory services and owns a substantial part of the equity of Albright Capital Management which in turn runs private equity funds out of the Cayman Islands which have investments in other funds and businesses with interests in Kenya, the Democratic Republic of Congo and other countries in the region. The Albright is former Secretary of State Madeleine, the NDI chair.)

Also one of those strange articles in The Daily Nation this past week, drawing on a particular bit of older Kenyan political history: the article notes that Ambassador Kyle McCarter will soon take up his post in Kenya for the United States, and that the first American Ambassador to Kenya, William Attwood, had acquired property in Kenya and wanted to retire there, but was banned from staying or returning to the country by Jomo Kenyatta who was angered by his act of publishing his memoir, The Reds and the Blacks. Without explaining specifically what Kenyatta was offended by, the article cites some of Attwood’s material about his perception of Cold War tied machinations involving the competition between Oginga Odinga and Kenyatta and allegations of Odinga’s separate East-bloc arms imports. It then notes Ambassador Ranneberger’s re-marriage to a Kenyan and his vacation home on the Coast at Malindi. (Interesting is the omission of any reference to Ambassador Smith Hempstone and his memoir, Rogue Ambassador, which details his interaction with “the second liberation” and his impressions of Raila Odinga and Mwai Kibaki.)

Maybe Ambassador McCarter is being reminded not to step too hard on certain toes so that the Government of Kenya remains cooperative with his family’s longstanding mission work in Tharaka Nithi?

The topic of “going native” came up for me in early 2010 when my security clearance was up for renewal for my job as a lawyer for Navy shipbuilding contracts where I had returned after my leave of absence to work in Kenya for the International Republican Institute in 2007-08. I filled out the detailed paperwork listing my foreign contacts over the previous years, including my work for IRI in Kenya, Somaliland and Sudan (later to be apparently stolen by Chinese hacking from the Office of Personnel Management) and had my interview with a retired military officer who had served in Somalia in the early 1990’s and thus knew the region.

I did not know how to initiate an explanation in my interview that I had gotten into a “he said/he said” with Ambassador Ranneberger about the 2007 Kenyan election on the front page of the New York Times but I expected it to come up in some form. After the interview, I got a follow up: was I sure that I had been loyal to the United States as opposed to acting on conflicting loyalties to Kenya–had I had gone native? I answered clearly and unequivocally. Essentially I asserted the lawyerly equivalent of the courtroom objection: “asked and answered”. “I already told you I was a loyal American before someone fussed — I have nothing to change.” Apparently this was satisfactory as I did not lose my clearance (and thus my job).

Jendayi Frazer, Asst. Sec. of State for African Affairs during the second G. W. Bush Administration and Swan’s superior during the 2007-08 Kenyan election imbroglio, maintains a home in Nairobi as I understand, and was the primary international spokesman, informally, for the “Uhuruto” campaign in 2013, accusing then Asst. Sec. State Johnnie Carson of “interfering” in the campaign by suggesting that the election of crimes against humanity suspects could have “consequences” in trying to tamp down the use by the Uhuruto campaign of a statement by President Obama that was asserted to bolster a claim that the U.S. had no concerns about the issue. Frazer has business interests in Kenya and with the Kenyan government, through the the Kigali domiciled but Kenya based East Africa Exchange commodity platform arising out of a partnership between Swiss trader Nicholas Berggruen’s Berggruen Holdings and the East African Community. See my previous post here. Frazer and a Berggruen representative are also on the board of the Mastercard Foundation based in Toronto which has extensive programs in the region. Frazier is an Advisor for Rice Hadley Gates, the international consulting firm of of her colleagues from the Bush Administration (Robert Gates also stayed on as Obama’s Secretary of Defense; Hadley was Rice’s Deputy National Security Advisor during the inception of the Iraq War and took over after she went to State where she brought over Frazer; Hadley also turned his experience to the chairmanship of the United States Institute of Peace. Carson has since retired from the State Department and is also affiliated with the Albright Stonebridge Group as well as the United States Institute of Peace and NDI.)

The cases of Attwood, Frazer, Swan and Ranneberger, if nothing else, are examples of the “Nairobi Curse”, demonstrating the advantages that accrue to Uhuruto in controlling access to permission to live and work in Nairobi.

Another famous case showing the “flipside” is British High Commissioner Edward Clay who complained of the milder-than-now corruption in 2004 that senior officials of Kibaki’s first Administration were eating as “gluttons” and “vomiting on [the] shoes” of donors who had stepped up to attempt to alleviate poverty and sickness among Kenyans. After his term ended in 2005 he continued to speak of corruption and was informed by then Kibaki Justice Minister Martha Karua during a BBC appearance during the early 2008 Post Election Violence in the wake of the stolen election that he had been declared persona non grata and banned from returning by the Government of Kenya in retaliation.

And of course there is the purge of the IFES Country Director during the 2017 Uhuruto re-election campaign.

[Update: to be clear, my point here is about the relationships and dependencies of individual Americans to the Government of the day in Kenya and Kenyan politicians in power, not to get into the merits or demerits of specific investment activity. I think it is good for Americans to be in Kenya and Kenyans to be in America. In concept, Frazer’s East African Exchange, for example, seems to offer potential benefit to small farmers, although the authorities in Rwanda and Kenya have a track record of contradictory priorities, so it is hard to know what to expect. As far as ASG and the associated private equity funds, I would think Nairobi is heavily served on the consultancy side but there is always a need for private direct investment in the region in the abstract, through the Caribbean or elsewhere, with the devil in the details of particular investments.]

State Department announces sanctions on head of DRC election commission and constitutional court for “significant corruption”

Good. Let me appreciate this action by the State Department to address a corrupt voting process and pull back from previous language that skipped over what seems to be the reality of what happened.

Here is the statement.

It would seem that collectively we (the U.S.) want to recognize Tshisekedi as fait accompli and “not Kabila”, and make the most of the opportunity for a better relationship and progress while still holding a small flame against election fraud for the future and not be “complicit” in covering it up. I very much approve of not being complicit in a cover up even if we are just trying to make the best of the situation with good intentions.

In Kenya in 2008 we issued private travel sanctions against two members of the election commission, the then ECK, for suspected bribery, but said nothing publicly. In that case there was violence from the election fraud and we had withdrawn our initial congratulations. We never disclosed the sanctions or the issue or evidence regarding the bribery but I learned of the matter from a Daily Nation story from a stolen cable from Wikileaks:

The Daily Nation– “What the cables say” (Feb ’08 US visa warning letters sent to ECK commissioners suspected of accepting bribes to fix vote tally) Mar 2 ’11 The link is apparently dead now; for discussion of the story please see Part Seven of my series on the page “The Story of the ’07 Election Through FOIA” under “The War for History Series: was Kenya’s election stolen?.

The public sanctions now, to me, are a step forward in responding to election corruption and I appreciate that we are taking this step. I also appreciate the many people influential in Washington who have spoken out publicly on the problem and laid the groundwork for this, noting Amb. Michelle Gavin at CFR and Joshua Meservey at Heritage. And of course Nic Cheeseman of Democracy in Africa and the University of Birmingham has been a ubiquitous friendly voice for the democratic process throughout.

As discussed in my previous post “Foreign Policy article gives insight on disagreements within Trump administration on backing off on criticism of flawed DRC vote” we learned a good bit about the intergovernmental back and forth on the U.S. side on these issues from the work of Robbie Gramer and Jeffcoate O’Donnell. (As I wrote I know there was some of this in Kenya 2007 but no one seems to have been willing to write about it yet and I only have pieces.)

So, what’s next?

Challenging Nigeria International Election Observation may present tests of character (2nd update on lobbying/funding) #NigeriaDecides

International Election Observation Mission members, including those from IRI/NDI, are arriving in Nigeria for the general election Saturday in a difficult environment.

Although invited by Nigeria’s government there has been at least one unwelcoming statement and no one could deny that this is a hard job simply from the stakes of the election, the instability in some areas, the poverty and underdeveloped infrastructure faced by large portions of the voting population and the simple relative newness of regular competitive elections.

International election observation, which focuses on civil and political rights, is part of international human rights monitoring and must be conducted on the basis of the highest standards for impartiality concerning national political competitors and must be free from any bilateral or multilateral considerations that could conflict with impartiality. It assesses election processes in accordance with international principles for genuine democratic elections and domestic law, while recognizing that it is the people of a country who ultimately determine credibility and legitimacy of an election process.

Quoted is the standard of independence and impartiality to which the USAID-funded NDI/IRI International Election Observation Mission is pledged under the Declaration of Principles for International Election Observation (Oct. 2005).

The IRI/NDI Nigeria 2015 Observation Mission was funded directly by the State Department so shifting back to USAID funding this time is one of the positive things that I see as having potential to help preserve independence and maintain clarity between an Assistance Observation and a Diplomatic Observation to the benefit of the process.

See my post “President Trump’s Asst. Sec. of State for Africa candidly explains why election observation and technical assistance have to be ‘fire-walled’ from diplomacy to have integrity” for a current discussion and further links.

The joint IRI/NDI EOM model has positives and negatives in terms of actual and perceived independence. In Nigeria where democracy assistance is confronted by “resource curse” funded problems and lobbyists working “both sides of aisle” in Washington at a unusual level for an “African election”, along with prominent American campaign consultants usually involved, the joint model seems to me to have some important advantages over IRI or NDI doing a nonpartisan mission on its own, in-spite of the tradeoffs (alternatively you could go with the Carter Center as an “outside the beltway” if politically connected choice, or Democracy International as a truly private entity).

IRI in Africa from my now distant view has come quite far from some of the vulnerabilities that we faced in the 2007 Kenya Election Observation–experience is the best “capacity builder” and institutional funding and attention are now much more appropriate to the scope of the job. Some of my old Kenyan friends and colleagues who did such a great job running things on the ground in 2007 have stayed on and climbed the ladder. And we can expect this election in Nigeria to be better than their 2007 election, observed by many involved this year, as well.

Since Nigerian elections are always high profile and “on the map” in Washington there is no danger of overlooking the situation from that front. This Observation is long-planned and expected and well-funded; there have been an ongoing series of pre-election missions with reports on preparations. Likewise these observations have been going on with regularity throughout this century–and we’ve even been through the scenario of an incumbent seeking re-election during the Boko Haram war.

At the same time, you need no expertise to know that national elections are always challenging in Nigeria and that while cumulative progress has been made in some areas there are some particular concerns that have been reported on and discussed by this Observation Mission and others in the donor governments and media.

Thus, there may be hard calls ahead for the Observers, both on concerns they have already highlighted and from unexpected events as the voting, counting and disclosing play out.

American lobbyist and Ellen Johnston Sirleaf advisor Riva Levinson articulated part of the present challenge well in The Hill in Washington over the weekend: “At Risk: Credibility of U.S. democracy promotion in Africa“. Johnston Sirleaf is in Nigeria as lead observer for the ECOWAS intergovernmental Election Observation Mission and was co-lead for the most recent IRI-NDI Mission, “ZIEOM” in Zimbabwe.

UPDATE (Feb 12): Riva Levinson and her firm KRL are “registered foreign agents” in Washington for Retail Express Limited of Lagos, Nigeria. The Foreign Agent Registration Act filing from September 30, 2018 identifies this client as a “limited partnership which supports the goals of the Senate President of Nigeria, Dr. Aubakar Bukola Saraki, to engage international stakeholders in support of free and fair national elections in February, 2019, seek a level playing field for opposition parties, and convey the core tenants of the Senate President’s vision for the future of the country.” (She also currently lobbies for the Ministry of Foreign Affairs of Liberia and the Ministry of Finance of Ghana.)

Sakari lost the now-opposition People’s Democratic Party (PDP) nomination to Atiku Abubarka but stayed in PDP, having defected from the All Progressives Congress (APC) of Pres. Buhari in July. The PDP itself hired Ballard Partners as its Washington lobbyists for a year at $1,080,000 two days before Retail Express hired KRL.

Recent former diplomat and Council on Foreign Relations Africa lead Amb. Michelle Gavin had a notably hard-hitting CFR blog post last week headlined: “The Truth About United States Complicity in DRC’s Fraudulent Election” although in the text she just covers the macro level issue of diplomatically blessing an election whose official result was contrary to all available evidence.

We in the U.S. got partially off the hook in the DRC where the incumbent Kabila did not invite U.S.-funded or other international observers beyond the African diplomatic groupings (although I learned from Levinson’s piece that we provided funding for the Catholic Church run ‘Parallel Vote Count’, a fact I totally missed in the news reporting. USAID’s website indicates we were also providing “technical assistance” to the election management body CENI itself (!) which again I missed somehow in the news reports. These facts may have informed Gavin’s view even if the journalists that I read did not take notice.)

Update II (Feb 18): As it turns out, the U.S. not-for-profit IFES continued USAID-funded work with CENI, along with its partner IRI in the Coalition for Electoral Process and Party Strengthening (CEPPS) according to a brief overview on IFES’s website, and continues to work with CENI toward local elections. CENI hired its own Washington lobbying firm in 2018, Avenue Strategies, founded by former DJ Trump campaign manager Corey Lewandowski (he left and set up a separate firm before the CENI contract). In January 2019 after CENI named Felix Tshisekedi as president-elect, Avenue Strategies also signed on to represent Tshisekedi as president-elect and now president.

Presumably, then, under the CEPPS mechanism USAID funded the third partner, NDI, for the work with the Catholic Church Parallel Vote Count. I will contact USAID to confirm the arrangement and see if they are willing to release any contractual details without a formal Freedom of Information Act request.

The Carter Center stood firm in calling out Kabila’s 2011″re-election” as failing to meet international standards. The State Department followed along in declining to bless the election and offering technical assistance to address irregularities back then, unlike the current situation which Levinson and Gavin question (although the diplomatic impetus for remediation at the presidential level in 2011 went away quickly).

See Dr. Carl LeVan’s Homepage “Development for Security” blog for an overview of the Nigeria election contest. Likewise, Amb. John Campbell’s “Nigeria’s Election: What to Know” at CFR.

Here is my piece from The Elephant in the wake of Kenya’s judicially annulled 2017 presidential election: “Free, Fair and Credible? Turning the Spotlight on Election Observers“.

[UPDATE III: here is the Preliminary Statement issued by the IRI/NDI Observation on February 25, after the delayed vote of February 23.]

International Election Observation Mission IRI Kenya Kibera Lavington Nairobi 2007

[Updated] Something afoot in Kenya: Nation newspaper is running investigative reporting on IEBC procurement corruption in 2017

Democracy Assistance signage painted on rural building - URAIA . . . because Kenyans have rights

Great, must read reporting by the excellent Ken Opala.

17 Dec. 2018 Daily Nation “Impunity reigned at IEBC in tenders scam whose theft “was beyond the imaginable“.

16 Dec. 2018 Sunday Nation “IEBC: Anatomy of a cash cow with serial abortions and indiscretions“:

But more telling was the Secretariat’s response to a resolution to engage USAid’s International Foundation for Electoral System (IFES) on the acquisition of the requisite Result Transmission System (RTS).

IFES, which procured the 2013 election servers, had made it known that this time it had earmarked Sh2 billion through its Kenya Electoral Assistance Programme (KEAP).

SUSPICIOUS FUNDING

The secretariat, as in the other cases, reportedly disregarded this decision. IEBC’s lack of enthusiasm can be explained. On Jamhuri Day 2016, President Uhuru Kenyatta had, without divulging details, spoken out against what he termed foreign countries’ attempt to influence Kenya’s elections through suspicious funding.

Exactly a week later, the NGO Coordination Board, then headed by Mr Fazul Mohamed, declared IFES illegal in Kenya and asked Central Bank to freeze its bank accounts.

Instructively, the IFES funding was to be a grant. Instead, IEBC awarded Safran the Sh4.19 billion Kiems contract against a budget of Sh3.8 billion. The Auditor General would later indicate an overpayment, contrary to the law.

Intriguingly, IEBC further paid Safran for the same goods and services during the FPE. The comparative costs for the August 8, 2017 election and the subsequent poll indicate huge over-pricing for the latter, despite it being just one election against the six during the General Election.

INFLATED COST

The difference was a mere Sh1.672 billion yet the August Election involved acquisition of 45,000 KIEMS and their configuration, training and logistics while (FPE) entailed the purchase of just 15,000 KIEMS. 

But more disturbing, the cost of FPE election-day support of Sh443.8 million “was almost twice that of the General Election”, that’s Sh242.5 million, according to the audit. 

In defence, IEBC argued that there was an increase in Safran technical personnel, from 94 during the General Election to 292 in the FPE, a position the Auditor General found wanting. In fact, not all the technical staff were deployed during the FPE and “in any case, elections did not take place in 21 constituencies”.

Despite the inflated cost, the glitches in the General Election also littered the FPE. In fact, the October 26 Election was a replica of — if not worse — than the August 8 General Election.

However, Safran couldn’t be held liable for non-compliance, for the contract of September 28, 2017, was without guarantee of compensation in case of non-execution. This is because the firm flatly declined to provide performance security bond for the huge undertaking.

BOND FUNDING

It argued that such a bond and a Letter of Credit (which it had) “serve the same purpose”.

(A bond is a specified amount of money to ensure work is performed to the contract standards. If poor, the recipient can request bond funding to be released to hire someone else to complete the work. Letter of Credit promises that payments will be made; it covers payment for a project).

Later, it emerged that Chiloba had discussed with Safran about the issue of performance security and agreed with the company’s position. He reasoned that at the time the contract was signed, Safran “had performed more than 60 per cent of the contract” in what he termed as a “high risk” venture.

Against this background, it would appear Safran was the master here; IEBC merely complied. “Retaining one company over a long time puts the organisation at the risk of compromise,” says Dr Nyanjom.

15 Dec. 2018 Saturday Nation “Intrigues and secrets at IEBC doomed 2017 election“.

These articles provide the kinds of details of corrupt procurement that we need for the 2013 election as well. I have waited another five months for another release of documents from USAID from those found responsive to my 2015 Freedom of Information Act Request for records related to the IFES work with the IEBC in 2012-13. Here is my post from last July when I received the initial batch: Election Assistance FOIA Update: disappointed to see from USAID records that IFES was supporting IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition.

Certainly we have never seen this type of investigative reporting, yet, for the momentous election of 2007.

The exposure of the rejection of USAID’s allocated funding for purchase of the Results Transmission System (RTS) under the Kenya Electoral Assistance Program 2017 (KEAP) is fascinating. This could explain a discrepancy I have been a bit concerned about. I was told that we (the United States) were funding the KIEMS system and had high confidence in it (this time), based on other implementations of the same system elsewhere. Then the USAID press office said after the election as I worked on a piece for The Elephant that we had not in fact paid for it. Perhaps the first report was not so much flatly wrong information as a good faith assumption that did not pan out when the planned assistance was rejected?

Unfortunately, I am left with concern about why USAID and IFES went ahead with the Kenyan Election Assistance Program, including IFES’ work directly with the IEBC and its management of the NDI and IRI components after the rejection of the RTS funding to proceed with Safran-Morpho. Especially since IFES had already been attacked by the Jubilee Party and the Government of Kenya and had to replace the highly qualified incumbent country director apparently to appease the incumbent. See “Why has Uhuru Kenyatta’s government acted against USAID and IFES?” from December 20, 2016. “State now expels American NGO’s boss, Genet MenelikStandard on Sunday, Jan 1, 2017.

The background for my reaction to this news includes the unexplained “shelving” by the ECK in 2007 of laptop computers purchased for it by USAID which facilitated the alteration of paper tally sheets at the ECK central headquarters in Nairobi to deliver the election to the incumbent and the “failure” of the RTS in 2013, which was attributed to a failed procurement by the president of IFES in subsequent U.S. Congressional testimony.

From March 17, 2017: “International Crisis Group report on Kenya: Avoiding Another Electoral Crisis” calls for donors to show “complete transparency”; USAID is apparently not convinced yet.”

As I wrote back in October 2017, “Kenya cannot have a free and fair presidential election without consent of the President“.

An interesting twist is that we ended up with two USAID-funded Election Observation Missions, but only the Carter Center mission–funded under a separate agreement as I understand–has produced a final report, whereas the NDI mission, under the auspices of the IFES KEAP program, has not followed up their interim reporting. The technology procurement issues that IFES would have been working with the IEBC, in particular the rejected plan to purchase the RTS system, did not find their way to the Carter Center observers report.

See from August 27, 2017: IEBC having admitted in Supreme Court that Results Transmission System did not work as advertised, March 2017 contract for KIEMS acquisition should be tabled.

One could wonder if the Government of Kenya has opted not to lean on the Nation in this instance, tacitly permitting the expose to at least the current extent? One could wonder if the US Mission in Kenya and/or other donors are not seeking to step up on this in the relative tranquillity of the post-handshake, pre-referendum and/or full fledged 2022 campaign? Any of that would be speculation and I do not claim any insight as to what has caused a crack in the edifice. [Update: I have learned, and should have guessed, that underlying the reporting is research from AfriCOG/KPTJ, the Kenyan civil society free election sojourners.]

Regardless of the reason this news is seeing “the light of print” (and the World Wide Web), it would seem with hard work in follow up there might be an opening to start to “lance the boil” of corrupt election management in Kenya.

Kenya IEBC terminates Chief Election Officer over procurement irregularities

Kenya 2013 election IRI Electoral Commission voter education posterKenya, after three problematic general elections (2007, 2013, 2017), might finally be showing some initial stirrings of organic action to start to address fraud within the Election Commission. The Independent Electoral and Boundaries Commission has announced today the termination of Ezra Chiloba, Chief Election Officer, after a long suspension.

The last two elections were plagued by technology problems, with the 2017 vote annulled by the Supreme Court. The donors, including USAID which directly funded failed purchases in 2013, and funded a major embedded role with the IEBC for IFES throughout these years, have remained conspicuously mute on reforms and corruption issues involving the Electoral Commissions.

In the past, after opposition protests, the Commissioners from the 2007 and 2013 elections were given lucrative buyouts to pave the way for a new slate, and impunity for bribery and procurement fraud issues was the informal consensus policy among the Kenyan politicians and the Western donors supporting the election process.

After the buyout of the Commission led by Issack Hassan which had failings in the 2013 vote, Chief Election Officer Chiloba was carried over under the new Commission on through the 2017 vote. Since 2017 we have now seen three Commissioners resign in addition to Commissioner Akombe who fled country during the tensions following the Supreme Court’s annulment of the August presidential vote. The remaining Commissioners have now acted to fire Chiloba after internal audits and a report by Kenya’s Auditor General raised “charges . . . on major procurements.”

See today’s announcement:

The next step is to release to the public the audit reports indicating “charges” and refer the matters for legal proceedings.

In the meantime, several more months have gone by without any further release from the USAID FOIA office on my 2015 request for the documents from their support of the IEBC through IFES for the 2013 vote.

See “Election Assistance FOIA Update: Disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of election petition by civil society and opposition“.

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.

“The great observer gamble” is a “must read” on the Zimbabwe election and international election observation

An important election and election observation drama is playing out now in Zimbabwe, and “The great observer gamble” (free feature) in Africa Confidential is the key explainer.

Subhead: “After an eight-month charm offensive wooing bankers and diplomats, the government is failing the legitimacy test”

Please follow the link and read in full.

In this case the U.S.-funded joint NDI-IRI international observation mission made a difference in international understanding of the difficult realities of the election in the context of seemingly conclusory approvals from the regional SADC (of which Zimbabwe is a member) and the African Union.

I have no criticism of the NDI-IRI effort and as far as I can tell my old colleagues have upped their game in important ways in this situation from my previous experience in Kenya. At the same time I would note that with the incumbent government already under sanction and not an important U.S. ally, and in a fairly small (in population) country with lots of opposition support in the U.S., this was a case where it was easier to stick to the facts of the vote without getting caught in a diplomatic undertow.

An important question now is how IFES in supporting the Zimbabwe Election Commission will handle the announced election challenge litigation from the primary opposition. With a fraction of one percent margin over the 50 percent runoff threshold and a lot of delay and uncertainty with the central tally (aside from voter register and larger “playing field” issues, this looks quite a lot like Kenya 2013, which I have been looking into through the Freedom of Information Act.

Mnangagwa’s team may have done enough to allow the most enthusiastic business people and governments to step up re-engagement. Much will depend on the strength of the opposition’s case at the election tribunal and the credibility of its handling by the courts.

Africa Confidential

[Update – the judicial challenge has been file. As in Kenya the process is truncated by a 14 day deadline for the court to rule.]

[This is one of my photos from the IRI Kenya 2007 Observation, as we arrived at Olympic Primary School in Kibera, Nairobi. One of the Zimbabwean newspaper sites used a copy of this image with the gentleman on the left cropped out for their Zim coverage.]

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.

Were Americans right to be so fearful of Odinga’s “People’s President” swearing in?

[Update Feb. 2: Here is a good overview from Martina Stevis-Gridnef in the Wall Street Journal, Kenya Crackdown on Media, Opposition Deepens“; Fr. Gabriel Dolan explains how the Kenyatta government has popularized the “National Resistance Movement by banning it, with good historical context.]

Since I elected to stay away from the 2017 election in Kenya myself, I have tried to avoid offering a lot of derivative commentary from afar, but have continued to be interested and concerned with how my American government representatives approach this on behalf of the American people.

Privately, I shared the worry that perhaps Raila was not being a good steward of the lives of his supporters given the risk of threatened action by the Kenyan governments’ security forces (and my inability to decipher what he was really aiming to accomplish).

Nonetheless, I also decided that it was not my place to lecture for several reasons. First, any Kenyan who would be deciding to attend or not attend the rally knew full well and far better than I the risks of running afoul of the GSU (General Service Unit, a paramilitary wing of the police, known for use for high profile political missions, such as sealing off Uhuru Park in the weeks after the 2007 election to prevent opposition rallies) or other force at the disposal of the “Commander in Chief President”.

Second, we ourselves have passed on doing our part to forthrightly deal with the detritus of the stolen 2007 election and the substandard and opaque election process that put the current Uhuruto regime in power in 2013.

Third, in this election cycle we did not give visible public support to reasonable reforms of the IEBC process. I am not willing to be too critical from afar without knowing more (although I don’t know more because our approach is intentionally more opaque than I think is appropriate or prudent) but in watching as an American back home we certainly gave the impression over the last couple of years that while we wanted things to go smoothly and would support negotiation of the disputes surrounding the IEBC in areas where they were pushed to the forefront by the opposition, we remained in the mode of supporting the old “Chickengate” IEBC team and staff, even while the investigation of procurement fraud directed by the April 2013 Supreme Court ruling never happened. Even when the British secured criminal convictions for the Chickengate bribes and paid money over to the Government of Kenya, we were mute as Kenyans enjoyed the customary impunity for corruption–and when Uhuru used the funds to do a “photo op” for the purchase of ambulances as if it was a charitable donation.

We allowed the incumbent administration to attack and potentially interfere with our assistance to the IEBC through IFES in the critical months before the election (see “The hardest job in Kenya . . .”) without obvious penalty, and stayed silent on reforms called for by the EU Election Observation Mission and others–aside from the opposition–in the wake of the Supreme Court’s September 1 ruling striking the presidential election of August 8 because of the IEBC deficiencies.

As it turned out the incumbent administration acted extra-legally to shut down private broadcasters (except the President’s own) but had the security forces pull back and did not initiate the feared violence. If we had any influence on that decision then I am pleased that our long years of support to Kenya’s various police and security services and governments of the day may have borne some positive fruit in that instance.

As far as the notion that Raila would be likely to unilaterally instigate violence in this situation, people in the State Department would do well to remember the analysis of Ranneberger’s own staff pre-election in 2007 that while there was hate speech on both sides the largest share was directed against Raila rather than on behalf of his candidacy or the opposition.

Invoking the so-called “ooga booga factor” to scare Westerners about Raila has been more than a cottage industry in Kenya (and in London and Washington PR shops) along side the ethnic hate speech to rally other ethnic groups against him in Kenya. And Raila is unavoidably controversial in some respects and gives his critics ammunition. But at present Raila is in a relatively physically powerless position in opposition; the Government of Kenya security forces are in the hands of “Uhuruto”, controversially elected in the first place as a “coalition of the killing” from the violence that was taking place exactly ten years ago.

In this context the “black propaganda” operation on behalf of the Uhuruto re-election campaign through Harris Media of Texas, United States, was particularly pernicious and even worse than 2007.

Let’s remember that then-Assistant Secretary of State Jendayi Frazer herself insisted that what was being done through the Kalenjin militias in the Rift Valley in early 2008 was “ethnic cleansing” and we all know the “revenge” attacks through the Mungiki against especially Luo and Luhya who had the misfortune of living and working in Naivasha and Nakuru were horrific. And that the largest share of the killing was done by the police and largest number of killed identified by ethnicity Luo per the Waki Commission. The ICC Prosecutor’s Office may have run a sloppy legal operation, but did they really get “the wrong guys” factually in the six indictments? Will O.J. someday find the real killers? (Do Raila and Kibaki–Commander in Chief then–and many other politicians also bear some real moral responsibility, too–surely so; does Kalonzo Musyoka? I personally would not vote for either ticket if they were running in my country, but they weren’t, and left us with our own problems.)

Fair minded representatives of the United States in current circumstances have to recognize that the threat of violence on behalf of an incumbent “Uhuruto” regime in full control of all military, paramilitary and other police forces is much greater than that presented by an opposition rally or ceremony.

Old Party Office in Kibera