The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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“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).

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”.

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

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

Kenyans for Peace with Truth and Justice statement to ICC Assembly of States Parties

Kenyan civil society groups who have been carrying the lonely burden of advocating for judicial accountability for the organized portion of the post election violence once again stood in the face of state power this week.

The Kenyan government sought to divert the International Criminal Court proceedings against Deputy President William Ruto for crimes against humanity through appeal to the Assembly of State Parties to overrule the Court on the admissibility of certain evidence and through a separate “investigation” of the prosecution.

I don’t know personally whether or not Ruto is guilty of the things he is accused of, but there appears to a great fear on the part of Ruto and the current political leadership that he might well be convicted by the judges.  Certainly Kenya’s senior politicians would know better than I the details of who committed the underlying acts forming the basis of the charges.

Statement By KPTJ at the 14th Assembly Of States Parties Of The Rome Statute

Kenyans for Peace with Truth and Justice is a collective of over 30 civil society organisations, which has been seeking accountability for the post election violence of 2008.

Mr./Mme. President Once again, this Assembly is being called upon to discuss concerns raised by the Republic of Kenya regarding the application of the Rome Statute in on-going trials before the International Criminal Court. This time Kenya is asking the Assembly to make a finding on the application of Rule 68.

Kenya is also asking for an ad hoc mechanism of five independent jurists to audit the Prosecutor’s witness identification and recruitment processes in a petition endorsed by some 190 parliamentarians.
The Kenyan state thus desires that this Assembly make a finding on a matter that is a pending decision in the proceedings of the Court. Such a finding would constitute a direct and wholly unwarranted interference by this Assembly with the judicial mandate of the court.

It also creates a very dangerous precedent – that States Parties with active situations and cases before the Court can reverse decisions or leverage political pressure on the Court through the ASP, to take decisions in favour of the States’ positions.

This is not the first time that Kenya has asked the Assembly to discuss a matter that is already before the court. During the 12th Assembly in this very hall, discussions resulted in the amendment of Rule 134 of the Rules of Procedure and Evidence and Rule 68 was also approved.

The request to discuss the Prosecutor’s strategy of identification and engagement of witnesses is an escalation of the failed request made at ASP 13 for a discussion on the ‘ICC Prosecutor’s conduct’. States refused to have this discussion then. The present request for an ad hoc mechanism should be rejected as an affront to the independence of the Prosecutor’s office

Witness tampering

It is important that this Assembly steps back and considers the context in Kenya in relation to which the discussions about Rule 68 and the conduct of the Prosecutor are taking place.

The Kenyan cases before the ICC have been affected by unprecedented levels of witness interference characterized by bribery and even elimination. In the Kenyan Case 2, The Prosecutor versus Uhuru Kenyatta, 8 members of the Mungiki militia group who allegedly interacted with Mr. Kenyatta during the post-election violence in Kenya in 2008 were reported to have been killed or forcibly disappeared.

Also, intermediaries for Mr. Kenyatta allegedly approached three Mungiki insiders, attempting to enlist them to identify other witnesses who would be willing to give exonerating evidence in favour of Mr. Kenyatta.
In the Ruto case, the Prosecutor has alleged that 16 of the original 42 witnesses have either been killed, recanted or turned hostile. One of the witnesses who died, Meshack Yebei, was abducted in Eldoret, the home area of Mr. Ruto, and turned up dead in another part of the country that is about 1000 kilometres away.

Arrest warrants

In an attempt to bring accountability for the interference with witnesses in Kenya, the ICC has issued three arrest warrants against three Kenyan nationals. However, none of these has been executed, as the Kenyan government has erected multiple legal hurdles to defeat the surrender of the accused persons to the ICC. This is in clear violation of its duty to cooperate with the ICC.

Who killed the witnesses and why? Who wanted them killed and why?

We do not currently know the answers to these questions. Whether or not the questions can be answered is directly tied to the conduct of the Kenyan state.

While showing no interest in the toxic domestic situation in the country, which has intimidated and silenced witnesses, the Kenyan state deployed a massive political strategy t influence how the cases from Kenya are handled. This has involved creating a highly charged, divisive and volatile political atmosphere.

This Assembly is now in effect being asked by Kenya to compound and reward the silencing of witnesses, and the shielding from accountability of those against whom the court has issued arrest warrants.

It would be a travesty if this august Assembly lent its powers to Kenya’s campaign to shield from accountability those who — because they have ultimate power over the country– have already used their positions to delay or defeat accountability for the crimes committed in the country.

This Assembly must think about the victims of the crimes committed in Kenya. Already, the Kenyatta case has been brought to an early end because of interference with witnesses. The underlying reason for the Rule 68 controversy is witness tampering. This Assembly must not condone it.

This Assembly must speak out clearly in defense of the independence of the Court. Cases being tried by the Court must be tried in the courtroom, not in the corridors of the ASP.

It is important for States Parties to understand that Kenya’s interventions are not aimed at strengthening the Court. Kenya continues to employ double-speak where it pledges to cooperate with the Court while at the same time actively frustrating it from continued investigation and prosecution of the cases at home and orchestrating a sustained international campaign against it abroad.

The Kenya State’s endgame, as publicly declared by various officials including the President, is the immediate, and premature, termination of the case against William Ruto and Joshua Sang, just as was witnessed with the Kenyatta case.

Let us remember also that Kenya has to date not offered domestic solutions for justice, accountability and meaningful and equitable reparations for the victims of post-election violence. Over 1,133 were killed, thousands sexually assaulted, maimed and over 600,000 displaced.. The Director of Public Prosecutions says a majority of these crimes cannot be prosecuted, a statement reiterated by the President.

Mr. President, Kenya’s domestic politics continue to define and inform its interventions on the ICC and at Assemblies of States Parties. As Kenya enters another pre-election season, characterized by inflamed rallies, hate speech and vituperation of the ICC and the Prosecutor we remind this Assembly that the ICC still remains the only viable hope for justice, truth-telling, accountability and reparations for the victims of the post-election violence in Kenya and the only credible deterrent against future similar crises.

KPTJ/19/11/15

Keeping the bar low for Election Observation Missions? ICYMI, IGAD congratulated Sudan’s Bashir on “peaceable and largely credible” election

From AllAfrica.com:

Ambassador Mahboub Maalim, Executive Secretary of IGAD, extended his warmest congratulations to President Omar Al-Bashir for his re-election to the presidency of the Sudan.
Ambassador Mahboub Maalim, noting the role of IGAD in observing the elections in Sudan, noted that the elections “were largely conducted in a peaceful and credible manner.”
Ambassador Maalim said: “I congratulate you on your victory and wish to express IGAD’s confidence that your leadership will continue to make earnest efforts to achieve lasting peace as well as prosperity for the people of the Sudan.” the Executive Secretary added that “I also wish you every success in these efforts and wish to affirm that you can count on my continued support.”

Here is the AU EOM preliminary statement as reported by the Sudan Vision.  The AU’s pre-election assesment had noted that predicate conditions were not in place for a fair election.

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.