“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).

[Updated 11 Aug] Kenya election updates 

My update is to just say Kenyan IEBC is not done with their job, but I’m done saying anything at all about this election process so far.  Since I’m not involved it doesn’t help to offer public commentary.

Before Kenya’s vote, read Daniel Branch’s The Fire Next Time

If you missed it, amid all the international media scene setters, and very last minute diplomatic appeals, take 9 minutes for “The Fire Next Time: Why memories of the 2007-08 post election violence remain alive.” from Daniel Branch in The Elephant.

Much wisdom on why Kenya has remained stuck following “the debacle of 2007”.

Always “steady progress” – COMESA “elders” to observe COMESA member elections in Kenya and Rwanda

From a COMESA Press Release yesterday:

COMESA believes that elections play a pivotal role in societal transformation in the region and provide a footstall for entrenching democratic principles.

Premised on this critical role, Member States have continued holding periodic elections which have heralded a new dawn by signifying steady progress towards deepening and institutionalizing democracy in the 19-member bloc.

Nonetheless, COMESA is still dispatching teams of Election Observers to issue Preliminary Statements just after the upcoming elections in Rwanda on August 4 and Kenya on August 8, with further reports after 90 days.

Zimbabwean Ambassador Dr. Simbi Mubako will lead the team for Kenya to arrive 30 July.

Think I am too jaded?  Enjoy this:

The presidential elections in Rwanda follows the 2015 referendum that unanimously approved a constitutional amendment that allowed President Kagame to run for office in 2017.  The forthcoming elections are considered important in Rwanda’s socio-economic and political progress.

In the past years, Rwanda has made significant progress in consolidating its political stability, economic growth and development.  Furthermore, Rwanda has recorded major milestones in consolidating democracy through holding periodic parliamentary and presidential elections as stipulated in its legal framework.

Since 2008, COMESA has continued to support the elections process in Rwanda.  COMESA observed the parliamentary that were held in 2008, 2013 and the presidential elections held in 2010.

I am all for extra diplomats and elders from the region being in Kenya for the election to meet diplomatic needs that may arise.  But let’s not confuse this type of “intramembership” diplomatic obsevation with an independent election observation. 

[See U.S. and IGAD Statements on Djibouti election from last year, featuring Kenya’s Issack Hassan for IGAD]

Must read on election tensions in Kenya: “A Silent Panic”

ELECTION 2017: A Silent Panic in Kenya by Dauti Kahura in The Elephant.

A series of backstories of building tensions with the latest election approaching on the layers of accumulated grief and injustice.  This is the stuff you don’t hear if you don’t have a practiced ear to the ground in Kenya and may be glossed over in the usual discussion in foreign capitals and international press.  And material that is too topical for the traditional Kenyan media with political power at stake. 

Congratulations to The Elephant for “speaking truth to power”.

“THE DEBACLE OF 2007” – my piece in The Elephant on how Kenya’s politics was frozen and an election stolen . . .

THE DEBACLE OF 2007: How Kenyan Politics Was Frozen and an Election Stolen with US Connivance | The Elephant

Are there some limits to impunity for killings in Kenya?

No doubt anyone reading this blog will have read of the abduction and execution-style murders of Willie Kimani, Josephat Mwenda, and Joseph Muiruri.

If you haven’t read it, here is Jeffrey Gettleman’s account in the New York Times, Three Kenyans last seen at police station found dead“.

As expendible as the lives of ordinary Kenyan citizens have always proven to be when they inconvenience or otherwise run afoul of the various state security forces, there are categories of people that are presumably understood to be off limits.

Thus the heightened shock and outrage when Kimani as a veteran young rights and justice lawyer with the respected American-based International Justice Mission is found murdered with his client and their taxi driver after being waylaid in returning from a court hearing.

Murder cases in which powerful people associated with state forces are obvious suspects are ordinarily “unsolved” and forgotten in various lengths of time depending on the prominence of the victim.  There is such a long list . . . Sometimes an unconvincing resolution is put forward processed through the system to buy time while we forget.

In this case, Kimani may have turned the tables by getting a handwritten note out of an “informal” Administrative Police holding cell to be found by a passerby–without this it seems doubtful that we would ever know that they were in AP custody between their abduction and their killing.  But we do know and are now responsible for that knowledge.

Will Kimani, Mwenda and Muiruri be forgetten after due processing of outrage, or will Kimani’s handwritten “brief” be a turning point for justice in Kenya?  Maybe this will be a time when there is no hiding and no excuses are accepted; I think IJM is serious and committed and this case has resonance across the broad community of those who dream of a more just Kenya.  No time like the present.

Impunity consolidates power with “mistrial” for Ruto and Sang; congratulations to American friends and factors of UhuRuto administration

As I noted in my post at the time of the dismissal of the Uhuru Kenyatta charges in December 20014, Ocampo, the Donors and “The Presumption of Arrogance,” a story of babes in the woods of Mt. Kenya?,  the United States’ support for “local tribunals” for the murder and mayhem in the 2007-08 political contest connected to the failed December 27, 2007 general election was akin to support for Santa Claus to bring a cure for Ebola.  Local tribunals were never going to happen under any scenario after we helped divert attention from the falsification of the vote tallies in the presidential race to give Kibaki an unwarranted second term and a continued monopoly over state violence.

It was always the ICC or nothing; we have now gone from six cases to none, without even getting any of the perps to trial.  Eight years after the PEV, we can say conclusively that the violence worked in spite of the (temporary) grousing of some in the “international community” and the steadfast courage of Kenyan human rights and democracy advocates.

Presumably we will never see the evidence regarding the post election murders in the possession of the Kenyan Government, but someday perhaps we will know what evidence the United States Government gathered.

I was sad to see Kikuyu wananchi celebrating the demise of the Kenyatta prosecution on the notion that Kenyatta had effected the violence to protect his “tribesmen”.  Certainly I have always felt that his motivations were, to the contrary, to protect and advance his own power and privilege, and I see Ruto in the same light.

UhuRuto Campaign Ad Kenya 2013

UhuRuto billboard March 2013

The “top ten” most shared posts from the first five years of AfriCommons

Famed Photojournalist Mo Dhillon responds to AU on ICC trials: “African Unity leading Africa toward disaster”

134 days after election, Kenya’s IEBC fails to produce results in Parliament

Was Kenya’s “Election Observation Group” or ELOG intended to be truly independent? Or was it to “build confidence”? [Update 3-30 on Further Overselling ELOG and ELOG’s use by Counsel for the Government in Court]

Ethiopian President Meles has died

Somaliland rejects UNSOM presence; Kenya reading

The U.S. “official” infatuation with Kenya in numbers

Kenya’s IEBC dangles “kitu kidogo” for political parties to avoid publishing results

Kenya’s elections: Observing the observers

The challenge for the West in Kenya’s 2012 election–and how we can learn and do better this time

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

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

 

Ocampo, the Donors and “The Presumption of Arrogance”; a story of babes in the woods of Mt. Kenya?

Let me be clear that I have always supported the pursuit of the ICC cases for the 2007-08 post election killings in Kenya.  Not because the ICC was necessarily a good option but because it was that or nothing.  My country, the United States, officially as a matter of foreign policy articulated by the State Department, always supported prosecution of the post election violence by a “local tribunal” in Kenya.  Which is quite exactly like being in favor of Santa Claus bringing a cure for Ebola in Sierra Leone.  In no way am I against either, but there are obviously more challenging questions begged by the devastating facts presented in these situations. (See “Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya”)

In the context of the “don’t be vague, go to The Hague” vote by Kenya’s Parliament, our U.S. position has been inevitably opaque.  We are not and have never been a member state of the International Criminal Court.  As a general proposition under U.S. law our officials are not to be involved in supporting ICC prosecutions, subject to certain potential exceptions.  Nonetheless, as permanent members of the United Nations Security Council the diplomatic strategy of the Kenyan government in the second Kibaki administration put us to a decision as to whether or not to support Security Council intervention to interrupt the ICC prosecutions in the two Kenyan cases.  We declined to do so, to our credit in my opinion.

How to understand what has happened with the pre-trial decisions by Prosecutor Bensouda to drop the charges against the two defendants in the Government/PNU case, Muthaura (on 11 March 2013) and Kenyatta (on 5 December 2014), while the trial in the Opposition/ODM case proceeds?

Almost seven years after the post election violence we are left with complete impunity on the side of those who initiated the conflict by stealing the election and employed two of the three types of large scale killings at issue in the charges of “crimes against humanity”.  ICC Prosecutor Ocampo’s Government/PNU case originally included Kibaki’s Commissioner of Police, Major General Hussein Ali, but the Pre-Trial Chamber declined to confirm the charges against Ali, as it declined to confirm the charges against Henry Kosgey on the Opposition/ODM side.  The greatest cause of death as identified by the Waki Commission report was gunshot wound – understood to be primarily administered by the General Service Unit, Administrative Police and Kenya Police Service forces under Ali’s command.  The “body count” of those who were identifiable by tribe as reported by the Waki Commission was greatest among the Luo–those targeted primarily by the Government side rather than by the militias associated with the Opposition.

So whatever happens with the Ruto and Sang case, the winners of the post election conflict–those on the side of those who stole the election in the first place and who killed to keep and enforce power–remain comfortably immune from any negative consequences, as well as with the benefit of what they have “eaten”.  No more than two individuals face any charges of the many people involved in raising and facilitating the ethnic militias in the Rift Valley that killed innocent Kikuyu in revenge for Kibaki’s election theft and to some extent for leverage in a post election political dispensation, as well as to remove future Kikuyu votes and occupy land as in 1992 and 1997 (when Kenyatta and Ruto were partnered in KANU as now in Jubilee).

Post-election IDP camp at Naivasha, Kenya, 2008

Post-election IDP camp at Naivasha, Kenya, 2008

I do not necessarily blame Ocampo for having tried and failed. He took on what was perhaps inevitably a nearly impossible task given his lack of actual power. I do very much fault him for raising expectations and seeming to believe as well as play to his own press, and then quitting before the end. I am inclined to think that he simply had no realistic understanding of what he was getting into in going after Kibaki’s closest lieutenants on their own turf and was tone deaf to learning.  He seems to have believed that the perceived global stature of the International Criminal Court and his office meant a lot more than it actually did in the warrens of power in Nairobi, no matter how many painted his face on the side of a matatu or a duka. It is hard to imagine how he could have failed to seriously pursue Kenyatta’s telephone and bank records before he left the prosecutor’s office in July 2012. Or how he could have seriously convinced himself that he or his successor would somehow get the records through some notion of “cooperation” from the second Kibaki Administration in which Kenyatta was a key Minister throughout, from his initial appointment during the post election violence on January 8, 2008, as well as the Deputy Prime Minister from April 2008.  Did he pursue evidentiary assistance formally from the United States under those potential legal exceptions I mentioned?

For details on the cases, as I wrote in a post in October ahead of the ICC Status Conference, “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.”

I do not doubt that Ocampo showed personal courage in the prosecutions of Argentina’s ex-generals and compatriots in establishing the credential that led to his appointment as the ICC’s first prosecutor. Nonetheless, the key distinction in that case was a change in government that made such prosecutions feasible. That did not happen in Kenya because the stolen election was allowed to stand, with an eventual settlement that if anything made the situation harder by adding the perpetrators on the Opposition side into that Government as more junior parties, helping to maintain unity for impunity.

As for my country, we tried to have it both ways by supporting impunity for the theft of the election–having at the very best “actively looked the other way” while it was happening– then notionally supporting “justice” for the killings that followed. Not an idea that was ever likely to fit down a real chimney in Kenya.

And yes, I do have more stories for “the war for history” series.  For instance, yes, the State Department did know before the vote in 2007 that the Kibaki Administration had dispatched the Administrative Police to opposition strongholds in support of the Kibaki re-election effort.  Of course if the “AP” hadn’t gotten caught by those Kenyan television journalists it wouldn’t have been such a problem; certainly we Americans did not say anything publicly.  Now that Kenyatta’s grasp on power is that much firmer with the ICC case over, I don’t doubt that he will further ramp up his efforts to formally and informally undermine the new Constitution and shift power back to the Presidency and away from the media, civil society and the citizenry at large to avoid such inconveniences going forward.

This week I got an email from the State Department’s Bureau of Democracy, Human Rights and Labor with a Request for Proposals for “Countering Closing Civic Space in Kenya and Uganda”.  It’s a nice idea to support those trying to hold on to the freedoms they have won, and the amount of money–as much as $841,000.00 for a regional program for the two countries–would not have been trivial if it weren’t for the many millions we spent on the Kenyan IEBC during its 2012-13 “#Chickengate” binge, and on helping to sell its incomplete at best results to the public in the last election, for instance, among many other examples of the things we keep doing to contradict ourselves on support for rights, reform and democracy.  And of course our much deeper overall long term “partnerships” with the Museveni and Kenyatta governments.

I may be the one showing naivete now, but I do actually believe that by and large most people in my government, as with the other Donors, do wish for better for Kenyans in terms of justice versus impunity, and for the protection of rights and the establishment of a meaningful democracy where voters have agency.  All other things being equal, they would like Kenya to be a country in which powerful killers go to jail and votes count.  It’s just that they can’t bring themselves to make the hard choices or take the risks required.