Just waiting on a FOIA–could legal action be pursued in the U.S. for Kenya IEBC procurement corruption?

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More than ten months after requesting documents from USAID on one part of our Kenya IEBC support program for the 2013 election I have been unable to get anything more than an assurance that my request “is being handled” for interim releases as soon as “possible” although USAID’s FOIA office got a CD of materials from the Nairobi mission at least six months ago.

Meanwhile, Secretary Kerry in Nairobi reiterated that my government intends to spend a new $25M on efforts for the election scheduled for a year from now, but supports the agreement between CORD and Jubilee to “buy out” the existing IEBC Commissioners (with at least informal immunity). I noted earlier this month that the Request For Proposals for a $20M election support effort released last December had been pulled off the internet without explanation.

Here is my FOIA request to USAID from last fall:

This FOIA request relates to Kenya Election and Political Process Strengthening Cooperative Agreement Number 623­LA­11­00007, under Leader Cooperative Agreement No. DFD­A­00­08­00350­00, with the International Foundation for Electoral Systems (IFES).

I am requesting the following:

1) All reports filed by IFES with USAID regarding the above referenced Cooperative Agreement during the years 2011 through 2013.

2) All correspondence between the IFES and USAID relating to the above referenced Cooperative Agreement during the years 2011 through 2013.

3) The complete contract or cooperative agreement administration files of USAID relating to the above referenced cooperative agreement.

4) All other documents or records, including e­mails or other electronic communications, created by, or received by, USAID relating to procurements under the above referenced cooperative agreement, from the date of the agreement to the present.

5) All other documents or records, including e­mails or other electronic communications, created by, or received by, USAID reflecting, referring to or constituting communications between USAID and Kenya’s Independent Electoral and Boundaries Commission, including its members, officers, employees or agents, from January 1, 2011 to the present.

6) All documents related to Smith & Ouzman, Ltd. relating to business of that firm in Africa from 2010 to present.

It’s mid-June: another month goes by without Kenya’s election results while Hassan goes to Washington [revised]

Form 34 Posted

Form 34 Posted

IFES, the International Foundation for Electoral Systems, hosted the latest round of its “IEBC goes to Washington” events with Chairman Hassan on June 12–this one purporting to discuss “lessons learned” from the March 4 election (link to webcast). A key lesson for the Kenyan government so far appears to be that if you sit on the election results long enough you can outlast the observers and the donors will pat themselves on the back anyway.

I didn’t make the trip to Washington for this event, in part because I don’t think the event should have taken place until after, at a minimum, the election results were released, if not other basic information we have all been waiting for. I did watch on-line. Here is my take:

My impression was that the objective of this event was indicated by the introduction and the conclusion. These were extravagant conclusory statements from IFES CEO Bill Press about what a great success the Kenyan election was and what a great job the IEBC and its chairman did (and by implication of course IFES). Otherwise, there was just nothing new here. IFES’s Country Director Michael Yard gave a sober reminder of all the many things associated with basic electoral reform, like campaign finance laws, gender balance,etc. that remain undone–as he cautioned back in April 2012 with Hassan in Washington about the challenges of trying to do too much in too little time in introducing technology. The Washington triumphalism is “tone from the top” stuff that I haven’t heard from Yard or anyone else at IFES and I don’t doubt that everyone involved in actually working on the programs in Kenya did their best to avoid the kind of mess that actually came to pass.

From Press’ argument, the reason this was all a great success–end of story–without even having results released three months later, is that “Kenya didn’t burn.” If I were a Kenyan I would be a bit offended by that. First of all “Kenya” didn’t “burn” last time–there was major violence in some places, including arson by militias, major sponsors of which, based on the confirmed ICC charges, got together this time. Kenyans of all tribes and persuasions were chastened by the post-election violence last time. Because of the experience, religious and community groups, civil society and the international community invested heavily in peacebuilding and conflict warning and resolution approaches. Threat of further ICC prosecutions hung over the key political actors that used violence last time. Thanks to a ruling by Speaker Kenneth Marende in Parliament and the High Court at the time, after passage of the new constitution in 2010, a new Chief Justice was appointed who was acceptable to the opposition as well as to the President, giving the opposition some hope in going to court after the IEBC ruling that the Uhuruto ticket had reached 50.07%. The Government of Kenya heavily deployed military, paramilitary and police force, especially in areas most supportive of the opposition, and the new Inspector General (chief) of police announced a ban of political assembly and peaceful protest, irrespective of the constitution–while gangs patrolled many of the slum areas. The biggest number of people killed last time were shot by the police, as reported by the Waki Commission. Last time the shoot to kill policy was unexpected; this time it was understood in advance. People stayed home after voting for many reasons that do not constitute an endorsement of the work and conduct of the IEBC.

Saying that the IEBC did a “great job” because “Kenya didn’t burn” is part of what I mean about having lower standards for elections in Africa–sorry if it’s impolite to notice.

The obvious question, of course, is that if Kenya not “burning” warrants so much public chest beating this time, should we include public discussion of “lessons learned” or any accounting or apologies for last time when so many people were killed and maimed?

Meanwhile back in Nairobi, the election results are being missed.

The Star: “Raila wants IEBC results released”:

“If indeed the IEBC conducted a free and fair poll, why is it delaying the computation of the election results three months later? They should announce so that we know what TNA, ODM, Wiper among other parties got,” Raila told the crowd at the Kabiro Primary School.

The Supreme Court on April 9 upheld the IEBC declaration of Uhuru as the winner after Raila’s Cord challenged the outcome of the presidential election.

The court ruled that the process was within the law and that Uhuru had been validly elected as the president.

Raila’s sentiments come against the backdrop of divisions within the IEBC over the computation of the results. An IEBC commissioner, who did not want his identity revealed, told the Star that the final figure was to be released before the end of last week but the disagreement among them had caused the delay.

The figures, according to the commissioner, were to be finalised before presentation of budget estimates to the parliamentary committee.

Whereas some commissioners want the the process finalised, others want the section of the Political Parties’ Act providing for the computation of results amended to give the commission more time. Those pushing for the amendment want the parties to share the monies on the basis of their representation in the Parliament and the county assemblies.

According to the commissioner, the variation of the results between the presidential and other positions was “irreconcilable”.

“The IEBC was to release the results before the end of the week but the huge variation between the presidential results announced on the 9th of March this year and the other positions combined is the source of the headache,” the source said.

(Updated) Kenyan diaspora disenfranchised?; Kwamchetsi Makokha raises concern about Kenyan voter education; IFES seeks consultant

Update (Nov. 28):  IEBC Chair Isaac Hassan says that as an independent commission the IEBC will make its own decision about whether to cancel diaspora voting and is not bound by the Cabinet decision announced below.  He acknowledged that registration is not underway and that this part of the vote is in jeopardy.

“Kenyans in diaspora locked out of March election” Business Daily:

Kenyans in the diaspora will not vote in the March 4 General Election, the Cabinet decided last Thursday.

Justice and Constitutional Affairs minister Eugene Wamalwa said the government decided that it will be impossible for Kenyans living abroad to vote owing to challenges facing the Independent Electoral and Boundaries Commission.

Mr Wamalwa said time and logistical constraints will not allow IEBC to register Kenyans in the diaspora. . . .

It’s been almost 2 1/2 years since the new constitution finally passed, providing for a right to vote for Kenyans living in the diaspora.  I am no big fan of the concept myself, but this is the law and I don’t see any unexpected challenges or difficulties in implementing it.

“Step up voter education, IEBC told” Daily Nation:

National Democracy Institute (NDI) consultant Kwamchetsi Makokha said on Tuesday the three months set for civic education was not enough to reach eligible voters.

“The period is not enough to reach the whole population. So many people know nothing about the devolved government and roles of the leaders,” he said. . . . during the launch of a sub-committee of the Political Parties Liaison Committee in Lamu.

I’ve heard elsewhere that there is significant lack of awareness by voters as to the nature of new positions up for election under devolved government under the new constitution.

In the meantime, IFES, the International Foundation for Electoral Systems, is advertising for an Election Administration Advisor for Kenya:

In preparation for the 2013 elections, IFES is implementing a capacity-building program in support of Kenya’s electoral process in the areas of election technical support, voter registration, voter education, and election dispute resolution among others.

Under this short-term assignment, IFES seeks to support the integration of activities of other government and non-government organizations, who play critical roles in the electoral process, including but not limited to the Registrar of Political Parties, Political Parties and Candidates, Security Agencies, the Judiciary, Civil Society Organization, Religious Organization, and the Media.

Observations from the IFES Kenyan Election Event in Washington

The International Foundation for Electoral Systems (IFES) has the video up from their program last week in Washington with Kenyan IEBC Chairman Ahmed Issack Hassan and IFES Country Director Michael Yard.

I found the program very useful and want to thank IFES for making this available.  With so many things going on right now in the region I have been hearing that people in Washington have not begun an intense focus on the Kenyan election preparation at this point, and I hope that this program will serve as a useful reminder of the huge scope of work to be accomplished in a relatively short period of time if Kenya is to be ready for a credible election process.

Michael Yard did a good job of emphasizing the magnitude of the task.  It has been widely recognized through the report of the Kreigler Commission and otherwise that the voter registration process was wholly inadequate in the last election (as reflected in Undersecretary of State Maria Otero‘s comment that “we recognize that over 2 million dead people voted”).    The IEBC says that they intend to implement a biometric registration system, which will obviously be a major undertaking.

In 2007 the number of polling stations was dramatically expanded to more than 20,000.  The domestic election monitoring program which had proven successful in 2002 was unfortunately not funded to make a commensurate increase and a high percentage of the polling stations were thus left without outside observers.  Nonetheless, with the increased demands placed on the voting system from the addition of voting for the new senate and the devolved local governments under the new constitution, the IEBC feels that they need to further reduce the number of voters at each polling station.  Their plans thus call for more than 40,000 polling stations.  This will place huge demands on both observation efforts and on the parties in deploying agents.

Hassan comes across as a “straight shooting” but soft spoken attorney, in contrast to the sometimes irascible Kivuitu from the 2007 ECK, and everyone is encouraged by the competitive screening and selection process for the new IEBC.  Nonetheless, we know now from hard experience that the pressures placed on the commissioners can be huge and it is crucial that active and transparent oversight by the donors supporting the election process be maintained throughout the effort to design and build a new national voting system.

It should also be noted that Parliament has not yet completed all of the necessary implementing legislation, including campaign finance laws, and most especially that the mechanism to handle the constitutional commitment to minimum representation of women in Parliament has not been resolved.  Of the major factors identified in the post-election settlement after the disaster in 2007, land reform has essentially been set aside and we can expect the new election to take place with IDPs outstanding from 2007-08, as well as from previous elections.  The cost of living, especially for food staples is more of a challenge than last time, and there has been no apparent counter to the reported flow of small arms into the potential Kenyan conflict zones following 2008.