In June 2007, newly “on the ground” in Nairobi as the resident Director for East Africa for the International Republican Institute, I was told that one of the President’s senior ministers wanted to meet me for breakfast at the Norfolk Hotel.
Fresh from my first meeting with the American Ambassador with his enthusiasm for the current political environment and his expressed desire to initiate an IRI observation of the upcoming election to showcase a positive example of African democracy, I commented to the minister over breakfast in our poshly updated but colonially inflected surroundings on the seeming energy and enthusiasm among younger people in Nairobi for the political process. I suggested that the elections could be an occasion of long-awaited generational change. He candidly explained that it was not yet the time for such change because “there has been too much corruption.”
The current establishment was too vulnerable from their thievery to risk handing over power.
Unfortunately I was much too new to Kenyan politics to appreciate the gravity and clarity of what I was being told, and it was only after the election, in hindsight, that I realized that this was the most important conversation I would have in Kenya and told me what I really needed to know behind and beyond all the superficialities of popular politics, process, law and diplomacy. Mea culpa.
After we ate, the minister naturally left me with the bill for his breakfast and that of his aide.
When it was all said and done, after the vote tallies were changed to give President Kibaki a second term through corruption of the ECK, and almost 1500 people had been killed and hundreds of thousands of people displaced, and I finished my leave to work for IRI and was back at home in the United States, at my job as a lawyer in the defense industry, I eventually submitted “hotline” complaints to the Inspectors General of the State Department and USAID about what I considered improper interference by the American Ambassador with my work as an NGO employee administering the USAID-funded IRI Election Observation Mission as well as the Exit Poll.
As an exhibit to these complaints, in addition to the statement that I had written for The New York Times after they had called to interview me in July 2008, I prepared a Supplemental Statement to the State Department’s Inspector General. Seven years after the ill-fated election, having eventually gotten what I could from a round of FOIA requests to State and two rounds to USAID, I am still left with unanswered but concerning questions about what the “agenda” was and was not on the part of the Ambassador, whether it was successful or not, and how it infected my work and the election. I have no doubt that if we “hadn’t even been there,” to paraphrase the Ambassador, the election would have been stolen anyway, but we were there. In memory of Peter Oriare and Joel Barkan to whom I dedicated this series for their efforts for a free and fair election and transparent process in 2007, and in respect to my newer Kenyan friends who have been left to continue the work in the aftermath, with courage and determination in the face of increasing repression and threat, here it is:
[I have redacted a few names and inserted some sections from my prior New York Times statement for context.]
The successful prosecution of Smith & Ouzman, Ltd. and two of its officers by the U.K. Serious Fraud Office for paying bribes to Kenyan election officials to obtain contracts with Kenya’s Independent Electoral and Boundaries Commission (IEBC) should be a wake-up call in Washington. Smith & Ouzman Chairman Christopher John Smith and Sales and Marketing Director Nicholas Charles Smith were sentenced last week and sentencing of the corporation is upcoming.
Ironically, perhaps, “capacity building” and procurement systems, along with the subsequently abandoned electronic results transmission system, were touted by U.S. Ambassador Ranneberger as features of the U.S. pre-election support in Kenya in 2007:
* “Developing the capacity of the Electoral Commission of Kenya (ECK) lies at the heart of our strategy. The USG funded International Foundation for Election Systems (IFES) has been providing support to the ECK since late 2001. Activities focus on providing appropriate technology for more efficient and transparent elections administration while improving the skills of the ECK technical staff. This support additionally includes capacity building and technical assistance to support election administration. Technical assistance includes computerization of the Procurement and Supplies Department, which is responsible for printing and distributing election materials. Assistance will also support implementation of the ECK’s restructuring plan, strengthening logistics capacity, and accelerating the transmission and display of results.”
From “Lessons for Kenya’s 2012 elections from the truth trickling out about 2007-New Cables From FOIA (Part One)” quoting a December 14, 2007 Ranneberger cable describing U.S. preparations for the Kenyan election.
For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC. Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.” “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013. See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.
For a detailed narrative and links on the U.K. Serious Fraud Office case, see Corruption Watch-UK/Trial Monitoring: “Chickens come home to roost: the Smith and Ouzman African bribery case”:
The most serious allegations relate to 7 contracts with the IIEC in Kenya between 2009-2010, worth £1.37 million, where S&O made unusually high commission payments of between 27% and 37% of the contract price. Part of prosecution’s case was that the commission of £380,859 over 18 months paid to the agent, Trevy James Oyombra, was exorbitant, and clearly designed to include payments for officials.
The contracts in Kenya included ballot papers and voter ID cards for By-Elections, 18 million voter registration cards, Referendum ballot papers, and other products relating to elections, such as card pouches, OMR forms, ultraviolet lights. It was a feature of several of these contracts that the S&O subcontracted out the printing work to other companies, in one case to a Chinese company that delivered the goods for less than half the cost of the contract price.
This raises questions about whether S&O were compliant with procurement rules and whether it compromised the security and integrity of the electoral process by subcontracting.
Additionally, on several contracts, S&O delivered significantly less papers than they were contracted to do raising the question of whether the integrity of the electoral process was compromised. It was also a feature of some of these contracts that prices were inflated significantly after award of contract. In all the contracts, the alleged bribes were paid for by the Kenyan tax payers, as the cost of commission was reflected in the contract price.
The specific contracts were as follows:
- June 2009 – Shinyalu and Bomachoge By-Election. S&O were to provide voter ID cards, and ballot papers – although in the end they provided only 142,000 papers against the 200,000 ordered.
- January 2010 – 18 million voter registration cards. Once S&O had been awarded the contract they subcontracted the production of half the forms to another company.
- March 2010 – contract for electors’ card pouches which S&O subcontracted to a Chinese company who delivered them for less than half of the contract price.
- May-July 2010 – three different By-Election ballot paper contracts (South Mugirango, Matuga and Civil By-Elections) – where the contract price in each case was increased substantially (sometimes by 50%) after award of contract to permit bribes to be paid. The agent advised S&O against providing “chicken” to visitors to their factory in 2010 as there were other officials not from the IIEC who he said they shouldn’t give “the wrong picture” – undermining the defence’s argument that the company was just doing things the “African way”. Significantly the company again delivered less quantities of ballot papers than were required in each of these three contracts – in the case of the Civic By-Elections some 40,000 less than ordered.
- July 2010 – a contract to provide 14.6 million Referendum Ballot Papers in which S&O worked out an uplift per ballot paper to factor in the bribery.
- July 2010 – 1.5 million OMR correction forms and 1000 nomination forms in May.
- July-December 2010 – ultra violet lights and other Parliamentary and Civil Ballot Papers.
Electoral officials at the IIEC were on several occasions described by the agent, Trevy, as trying to make money before they left the IIEC and went back into government. The agent described the officials at on stage as anxious and “broke”, and “they are desperate for the chicken”. The agent also said that officials told him that S&O needed to “be discrete since all peoples eyes and the government intelligence are watching their every move even on the phone to ensure transparency”.
The Kenyan officials named in court as recipients of payments were as follows: IIEC: Kenneth Karani (chief procurement officer); David Chirchir (IIEC Commissioner); James Oswago (IIEC Chief Electoral Officer); Dena; Kennedy Nyaundi (Commissioner); Gladys Boss Shollei (Deputy CEO); Issack Hassan; Hamida, Tororey and Sang.
Several of these officials are still in government: David Chirchir is current Energy Minister in government, and Issack Hassan is the current Chairman of the Independent Electoral and Boundaries Commission (IEBC) which took over from the IIEC.
The scope of the successfully prosecuted bribes to Kenyan officials, in particular the Kenyan Interim Independent Electoral Commission, now Independent Electoral and Boundaries Commission, was such as to suggest the corruption was not unique by time or geography.
Although USAID, as referenced in the State Department cable quoted above, has provided millions for the operations of the Electoral Commission of Kenya and its successors on a regularized basis since embedding IFES in the Electoral Commission of Kenya, ECK, in 2001, I do not know whether there was any direct U.S. funding, or U.S. funding through a “basket” administered through UNDP or otherwise, implicated in the specific acquisitions involved in the prosecution. At the least, given the level of U.S. funding for the Kenyan elections through this time period, the U.S. indirectly underwrote the ability of the Kenyan election officials to corruptly overpay for those things the U.S. was not helping to pay for.
The time period during which the offenses at issue in this U.K. prosecution occurred was 1 November 2006 through 31 December 2010. Also during this time, for instance, IFES awarded a more than $3.4M competitive procurement for USAID to Smith & Ouzman for polling booths for Sudan’s National Election Commission for 2010 elections. Although there may be nothing at all irregular, it is worth noting that Smith & Ouzman has generally been identified as a “printing company” and its election related products and services marketed on that basis.
From a 2008 IFES election materials “buyer’s guide”:
Providing the Ballot — Supporting Democracy Worldwide Smith & Ouzman, Limited, has been established for more than 60 years and is the globally trusted name in security printing, providing tailored secure ballot solutions to electoral commissions and authorities from Afghanistan to Zimbabwe, and many places in between. Our team of professional staff has considerable experience in election projects and ensures that ballot papers incorporate devices to protect against electoral fraud and are packed for distribution directly to polling stations. Smith & Ouzman, Limited is the company that provides you with security, integrity and reliability. ● Election Experience Afghanistan, ballot papers; Benin, indelible ink; Botswana, ballot papers; European Union, ballot papers, postal ballots; Ghana, equipment; Kenya, ballot papers, registration forms, voters cards; Kosovo, ballot papers, registration forms, postal ballots; Malawi, ballot papers, UV lamps; Mauritania, ballot papers; Namibia, ballot papers; Nigeria, ballot papers; Somaliland, ballot papers, indelible ink; Tanzania, indelible ink, security envelopes; Uganda, ballot papers, indelible ink; United Kingdom, ballot papers, poll cards, registration forms, postal ballots; Zambia, ballot papers, indelible ink; Zimbabwe, ballot papers.
. . . .
. . . [H]e is in a new position set down on top of an old and dysfunctional organisation that he has inherited and that he does not have time to change before the election.
The news already reports a rift over appointment authority between Kimaiyo and the chair of the new National Police Service Commission—the kind of kinks in a new system that should be expected and that inevitably take time.
Ultimately, Kimaiyo even on paper, is only one member of the National Security Council. Even though he has some additional theoretical authority, he is to implement rather than set the government’s security policy.
Like Samuel Kivuitu in the weeks before the election in 2007, he has respect and credibility from his past, but he is one man only, one vote on security policy, and not fully in control of what will happen even within the police service at this point. This should be a sobering thought in light of what we all saw play out in the last election.
FYI, this was submitted for publication before the back and forth in the campaigns about alleged involvement of civil servants in politics.
Please also read this from Pheroze Nowrojee in the Star, “Of Civil Servants and our Politics”:
The Inspector-General of Police, David Kimaiyo issued a public statement that politicians should not discuss land ownership in their campaigns. He did not suggest that there was any breach of the law by any politician. Yet he called for a gag. He was stepping into the political arena. He was abridging the Bill of Rights. Kimaiyo too was way out of line.
Extremely interesting time, “isn’t it”?
Parliament is in an uproar about questions surrounding the deaths of Internal Security Minister Saitoti and Assistant Minister Joshua Ojode in a helicopter crash. Ironically, perhaps, at least one of those MPs raising questions about a drug-running connection has sparred with the U.S. in the recent past over accusations of his own involvement in such activity–but many others are raising questions, too. The ostensible investigation into the crash has obviously lagged in terms of any public information from the government.
TEN QUESTIONS MPs ARE ASKING
-Why did police fail to secure scene of crash?
– Why was Iteere first at scene but left shortly?
-Why was Saitoti family not briefed on probe team?
– Why did State frustrate South African experts till they left?
– Is there a possible drug-link to chopper crash?
-Is Kimunya’s ministry co-operating in probe?
– Shouldn’t Kimunya let someone else speak on behalf of Government?
-Why is State shifting positions on investigations?
-Why has State left a vacuum for speculation?
-Why should Iteere and Transport PS not step aside?
Police reform and land issues were understood by “everyone” to be crucial tasks for the “Government of National Unity” to get Kenya back on track after the failed election of 2007 and the ensuing violence, yet the Saitoti matter and drug controversies show how little has been accomplished or even attempted on the police front. (We have noted previously the fact that the land issues have remained unaddressed and ripe for more conflict.) When the Commissioner of the Police during the election, Ali, was pushed aside into the cushier, quieter role of Postmaster, in response to pressure from the U.S. among others, who replaced him but Iteere, the head during the election and post-election of the Kenyan police’s paramilitary General Services Unit (“GSU”)? In other words, the paramilitary forces in charge of securing Kibaki’s second term by, among other tasks, locking down the KICC for the announcement of the flawed election tally by Electoral Commission Chairman Kivuitu and keeping Uhuru Park in Nairobi free of demonstators while the parts of the Nairobi slums and the Rift Valley burned. How can Kenyans reasonably be expected to trust the police now?
Election campaigns are in full swing with the “2012 election” already pushed to March 2013, with questions about the ability to prepare on the part of the Government and on possible further delays for legal issues. Parliamentarians have openly sought to undermine key political reforms in the new constitution to continue to facilitate “party hopping” among other gambits to preserve themselves.
And now, the U.S. Ambassador has resigned, after an extremely low-key year on the ground. Obviously there is a back story. He was Obama’s personal choice and supposedly the post was held for him to become available after the Sudan referendum where he served as Obama’s envoy. The details may or may not matter, but regardless, it is crucial that the U.S. Administation step up to the plate in getting someone effective confirmed quickly to replace him. Confirmation hearings will be a chance for Congress to focus on Kenya before things get even messier.
For better or worse, Kenya has no greater friend internationally than the United States. It is time for some sense of urgency and focused determination from Washington. Kenya is worth paying attention to now rather than after it becomes the next crisis of the day.
UPDATE: “Why Gration Really Resigned” story from Molly Redden in The New Republic late this morning has unnamed former State Department officials indicating that a scathing report on Gration’s management style at Embassy will be released soon. Given that Africa Bureau management as a whole was heavily criticized in an IG review released shortly after the Obama Administration took office, it is especially surprising to see a new round of controversial management in the largest and most important U.S. Mission in the region.
Wednesday, the inspector general said the funds were channelled through USaid to eight organisations either based in Washington, Rome or Nairobi which in turn contracted 86 local groups involved in the ‘Yes’ campaign led by President Kibaki and Prime Minister Raila Odinga.
Responding to questions sent by the Nation, the USaid inspector general said: “We did find evidence that USaid specifically spent taxpayer funds to encourage a ‘Yes’ vote.”
The inspector general said Sh1.1 billion ($12.6 million) of the total amount was used to finance activities directly related to the referendum.
“USaid found no evidence that any of this money was spent specifically to lobby for or against abortion,” an agency official said in response to a list of questions.
The USaid’s review did not take a position on whether that law was violated. “We consider this to be an unresolved legal issue this office lacks the authority to decide,” it said.
Mr Smith dismissed the findings and said he has asked the Governmental Accountability Office, a watchdog agency, to investigate afresh.
“During our review of the costs for seven grants, we found that only 41% of
the grant funds were actually spent on direct program activities. More than
60% of IRI’s expenditures and almost 50% of NDI’s expenditures were for
security and overhead costs; mostly security. NDI spent almost one third of
its funds on security, and IRI spent more than one half of its funds on
security. Thus, only approximately $47 million of the approximately
$114 million was spent on direct program activities.”
The overall subject of the audit was almost $250M in grants to have been supervised by the State Department’s Bureau of Democracy, Human Rights & Labor. Hugely dislocating sums relative to what the US spends on democracy work in places like Kenya. Sudan was number two while I was at IRI, but Iraq was by far the largest dollar program, and surely the “bill payer” for Washington overhead.
On The Cable blog at Foreign Policy Josh Rogin reported the release, and was promptly insulted by a commenter, in much the same terms used to insult New York Times reporters Mike McIntire and Jeffrey Gettleman for writing about IRI’s Kenya exit poll fiasco (see Page “The Kenyan Election and the US Exit Poll” above, and Documents and Stories links on your right). The personal insults were immediately preceded by “IRI” posting a link to IRI’s response to the audit.
The whole report is here: SIGIR: DOS Grant Management–Limited Oversight of IRI, NDI Grants