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) as 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

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?