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.

Diplomatic Support for Marende

On Kenya the State Department issued an official statement today calling for transparency and cooperation in implementing the new Kenyan constitution, keying off Speaker Marende’s ruling on the Kibaki appointments.  This follows a statement by the German Ambassador to Kenya on Friday that the President and Prime Minister should “sit and agree” on the key appointments. U.S. Ambassador Michael Ranneberger called the Marende ruling “courageous”, “correct”, “objective” , and based on “principle” and said that he expects that it will be appreciated and supported by the Kenyan people.

Press Statement

Philip J. Crowley
Assistant Secretary, Bureau of Public Affairs
Washington, DC
February 20, 2011

Speaker of Parliament Kenneth Marende ruled on February 17 that President Kibaki’s nominations to key judicial and budget positions were not consistent with the provisions of the new constitution, highlighting the importance of moving forward on reform transparently and cooperatively. Progress can only be achieved if the President and Prime Minister work together in a collaborative way to implement the constitution, particularly to ensure that appointments are made in a transparent and credible manner.

Adoption of Kenya’s new constitution in August 2010 was a major milestone in implementing sweeping democratic reforms set out in the National Accord. The National Accord – which is written into the constitution’s transitional provisions – calls for the two principals to consult with a view to achieving compromise on key issues. We also encourage the coalition leaders to involve civil society in the constitutional implementation process in order to achieve national consensus.

Full implementation of the letter and spirit of the constitution is crucial to realize the promise of a democratically stable and prosperous future for all Kenyans.

The Nation, “Power politics behind Kibaki-Raila standoff”:

The latest standoff in the grand coalition government is part of an orchestrated campaign to stave off the ICC intervention in Kenya’s post-election crisis, the Sunday Nation can report.

Interviews with an array of players in the top political echelons and informed legal circles revealed that the threat of ICC trials facing powerful men and the cut-throat competition to succeed President Kibaki are at the heart of the conflict that has played out over the controversial list of nominees to key constitutional offices.

Part of the scheme is the bare-knuckled effort by the PNU top brass to ensure that Prime Minister Raila Odinga does not succeed President Kibaki next year. Senior PNU politicians believe the PM is keen to use the ICC trials to eliminate competition for the top seat next year.

There is also growing discomfort in sections of PNU that a Raila presidency will most certainly support speedy prosecutions by the International Criminal Court or revive some sensitive cases touching on powerful individuals.

Apparently, forces against the prosecutions have broken ranks and see the controversial nominations as an avenue to size up their opponents.

An international law expert familiar with the workings of the ICC said key players out there have been keenly following recent developments in Nairobi and Kenya risks being designated a hostile State.

“The kind of relationship that existed between the ICC and Kenya is no more because of the shuttle diplomacy to the AU and the letter to the UN Security Council,” said the lawyer who cannot be quoted discussing ICC matters.

Here is an Alex Ndegwa feature from today, “Marende: the voice of reason amid chaos”. I agree.

Kenya’s Speaker Marende Makes Key Ruling that Kibaki Nominations for Chief Justice and Attorney General Do Not Meet Constitutional Requirement

With Marende’s eventual determination that Kibaki must further consult his coalition partner, Prime Minister Raila Odinga, the effort to circumvent the potential ICC prosecutions for post election crimes against humanity has met a setback. Marende has once again proven to be Kenya’s indispensable governmental authority in the absence of a will or ability of the coalition “principals” to act in concert.

Marende praised by UN High Commissioner for Human Rights, meeting with Biden; South Mugirango by-election this week

Kenyan Speaker of Parliament Kenneth Marende seems to be getting an increased international profile. Navanethem Pillay, UN Commissioner for Human Rights, called on Marende on Monday, expressing concern regarding progress on prosecution of suspects for post election violence. According to the Standard she singled out Marende for praise, “saying he had made immense contribution in stabilising the country through some historic rulings and the manner he handled issues in Parliament”.

U.S. Vice President Biden will call on Marende Tuesday as well, along with his meeting with President Kibaki and Prime Minister Odinga.

Interestingly, Marende says that Parliament “would easily pass” legislation to provide for a “local tribunal” to try election violence cases under Kenyan criminal law “if the ICC acted swiftly by taking away key perpetrators of the violence”.

Biden will leave Thursday morning, the day of the South Mugirango by-election to fill the seat vacated by a successful election petition against Omingo Magara, originally of ODM. As it stands the race is hot, with Raila Odinga campaigning for the substitute ODM nominee, Ibrahim Ochoi, William Ruto campaigning for Magara running as a PDP nominee and heavyweights in PNU affiliates split among Magara and other candidates.

Marende Deserves Credit in Kenyan Constitutional Reform Process

I shouldn’t neglect to recognize the significance of the fact that the new draft constitution was presented, debated and voted on in Parliament fully in compliance with the legislation establishing the process. The draft was ultimately passed with the outstanding issues and arguments about the substance of the constitution rather than the process in passing it.

Parliament is fractious, and there were ethnic as well as party divisions cutting across various issues regarding a new constitution. Shepherding the process to conclusion on schedule without major procedural controversy seems to me to be a real accomplishment for Speaker Marende. He really has been Kenya’s Man of the Hour as reflected in his dual roles as Speaker and as leader of government business in Parliament–a role he took on to prevent gridlock when the coalition government could not agree on a leader.