The New York Times on Kenya: working through my reaction to the mess they have made on the photograph of terror victims at a time of grief

1. I cannot and have not defended New York Times’ use of the particular photograph of victims that has angered Kenyans.

Using that photo, especially while the attack was ongoing, was bad judgment in a number of respects that have been well explained by others.

2. My personal inclination from my own circumstances is usually to be somewhat defensive of the Times when they get attacked . . .

. . . as they frequently do, not because they are not regularly frustrating and imperfect but because they have been and continue to be a critical part of the wider media firmament in the United States. And newspaper journalism in the United States is suffering to our detriment and all professional news reporting is contested in our Trump era. (More about this later).

3. But, apologies are easy.

I understand that if the Times turned over editorial judgment to social media responders they would quickly be lost in the internet sea and cease to exist or be snatched up by a hedge fund and/or an ideologically motivated billionaire and/or have to publish listicles and soft porn to survive. Likewise they can never willingly let themselves be bullied by authoritarian governments so the grandstanding demands and threats from the Media Council of Kenya make the situation harder to address constructively and are not in well considered good faith in my opinion.  But apologies are still easy. (And surely taking down or swapping out the one photograph would be a “correction” not some actual editorial diversion.)

4. Thus, I come around to seeing and feeling a humility and empathy problem.

Especially as time has gone by. The Times is not the Daily Mail nor The Sun and does not deserve to be the poster child for historical imperialism/colonialism devaluing black and brown bodies even if it has its own limitations and faults. But the Times made a mistake here and it was unforced and not anyone else’s fault. The tone deaf lack of responsiveness makes me more appreciative of the perspectives that I have picked up from friends in academia and journalism and other fields over the years that are more critical of the Times.

5. The individual reporter did nothing substantively professionally wrong.

The complaint is with the photo placed by the editors in New York not with the reporter’s story. The photo was by a Kenyan photographer through the Associated Press. So it is simply not her fault. In the moment of anguish with the attack it seems that she received a lot of the grief associated with this situation which was not her doing or in control. Having arrived at an understanding of the facts, there is apparently still a broad sentiment among many Kenyans, including many that I admire and respect, to deport her for being insensitive and seemingly a bit flip in responding. In other words, to me more of a moral question as to whether we think from Twitter that she has the personal traits we approve of as opposed to her actual writing.

Keep in mind that she is a corporate employee presumably. Without knowing the details of her individual situation with the Times, in general terms most American employees are subject to being fired at will, for any reason or no reason, without any legal right to severance as in Kenya, much less “due process”. I am a corporate lawyer [my experience in the world of Kenyan media and politics (and especially the New York Times) that has been the basis for this blog was “on leave” from that corporate career] so I know something about how things work. For a remote employee to say unilaterally to the public on social media that her bosses back in New York screwed up something that is in their job description and discretion and not hers is problematic.

The reporter/correspondent is supposed to say “I am sorry but I personally think my bosses have made a terrible mistake with the company product back in New York”? I do not know what I would have done in her shoes, and I can sit back at home and imagine doing better but realistically she was in a losing position.

I had a slightly analogous situation as an NGO employee in Kenya when my bosses back in Washington put out a press statement that the exit poll I supervised in the 2007 election showing an opposition win was “invalid”. I was in a lose/lose situation on my own in Nairobi. My threading of the needle in dealing with that situation has never been fully satisfactory to anyone so far as I know but not fully “toeing the line” has been life changing in some respects. I objected strenuously in private. In public when I was pressed by a reporter for Nairobi’s Star on whether the statement from Washington “reflected my personal opinion” I explained that “it was’t intended to reflect my personal opinion”–no surprise that the reporting when it hit the paper was that I had said that it “did not reflect” my own opinion. When it was faxed to Washington the president of my organization “hit the roof” per a phone call from my boss who had heard it from him. After I explained the exact choice of words, she ran interference for me and got him “calmed down” on the basis that I had been “misquoted”. Of course I knew when the reporter called me that I was likely to get get fired for diverging from my superiors and I did not have an opportunity to go ask my wife and kids.

I did some things privately during the interval to keep the exit poll from “going away” before it was ultimately released publicly in July but that was closely held and I have never written about that part of the story yet.

It was only post-employment that I felt that I could publicly express my own opinions related to my work.  Ultimately I was quoted from published interviews in The Nation magazine and The New York Times itself (and written about by Kenyan media and and The Weekly Standard and RedState.com without being contaced or interviewed).

Fortunately, my temporary duty in NGO-world was ending in a few weeks anyway. My law job was waiting for me at home. I decided not to resign to keep the office together and I did not get fired. But I was on a short leash until my return to the States and I avoided being out and about or meeting politicians so I would not have to be chose between being openly insubordinate or dishonest. I am grateful that I had some room to maneuver in that pre-social media era.

7. Where do my Kenyan friends want this to end up?

Is “the Kenya we want” one in which foreign reporters for foreign newspapers get deported because they are perceived to be insensitive on social media? What are the ramifications of that? Just reporters? Etc.

Remember that the Times of London correspondent was detained at the airport and expelled by all appearances because he was investigating the Eurobond mysteries. No one filled those shoes. You are still on the hook for the debt and it turns out there seems to have been a secret problem with the SGR financing from 2014 that you are just reading about now.

This deserves to be reflected on and discussed–perhaps mediated–offline and in person, with a little space from the anguish of this attack, and this photo.

6. The peak of this for me is someone on Twitter who wanted to deport the photographer.

Fortunately the Courts in Kenya have now clearly and explicitly ruled against the Executive Branch’s power to deport a Kenyan in the Miguna Miguna cases. We all know the application of the law to the actions of Executive Branch is difficult and often contested as a matter of power rather than right–here in the United States also–so I think Kenyans would be wise to think carefully on this.

A Chaotic Kenya Vote and a Secret US Exit Poll in New York Times

My writing on my experience with the birth of “Birtherism” and Trump’s foreign policy

Birtherism is back in the news with statements by Jerome Corsi, author of The Obama Nation and Where’s the Birth Certificate?, that he expects to be indicted by the Grand Jury in the Special Counsel investigation of Russian interference in the American presidential election. News stories this week on Corsi’s role in the current investigation used photos from Corsi at Kenya Immigration in 2008 when he was expelled while investigating Obama while I was Regional Director for the International Republican Institute.

Update: Voice of America, Nov 23, “Roger Stone Associate in Plea Talks with Mueller“.

FILE – Jerome Corsi, center, who wrote “The Obama Nation: Leftist Politics and the Cult of Personality, follows an immigration department officer holding his passport.

Likewise, Michelle Obama made news in pre-tour snippets from her new memoir “Becoming” that she most especially found birtherism from Trump unforgivable on a personal basis because of “his loud and reckless innuendos putting my family’s safety at risk.” See “In Her New Book, Michelle Obama Denounces Trump’s Sexism and His Promotion of the ‘Birther’ Conspiracy” from The New York Times.

A few weeks ago I had a piece in The Elephant which ran with the title “From Birther to More of the Same: American foreign policy in the Age of Trump and it’s impact on Kenya.” Salim Lone, former Raila Odinga spokesman, commented: “As always, a very interesting and objective look at our elections and the role the U.S. has played here from Ken Flottman. He is on the dot for pointing out the continuity in Kenya of the Bush Obama Trump arc, but on matters election, I’d give Bush an upper hand.” (I would appreciate any thoughts or observations you might have.)

I wrote about Corsi more specifically and his role in the 2008 United States presidential campaign between the late International Republican Institute Chairman Senator John McCain and then Senator Barack Obama back in 20014 here:

“A few thoughts about ethnic polarization in Kenya as we wait on the ICC”

An important thing for outsiders to realize is how complex, and deliberately obscured, these things are in Kenyan politics–and how much of what is said in popular fora in the United States is at least misleading if not flatly wrong factually and in some cases deliberately malicious. (I have finally just now brought myself to read the whole Chapter 4 on “Kenya, Odinga, Communism and Islam” in Jerome Corsi’s book The Obama Nation which was published shortly after I returned from Kenya in the summer of 2008 during the American presidential campaign.  It was a major bestseller and thousands of Americans may have read more about Kenyan politics in that chapter than they have ever read elsewhere over their lifetimes.  Corsi . . . paints a picture of the Kenyan election and the post election violence that is very much at odds with my understanding and experience, as well as anything I heard expressed internally at the International Republican Institute, or through my family’s church in Kenya or from our missionary friends or at my children’s missionary supported school.  In other words, malicious.)

One of the most important and interesting things that I have learned (so far) from my Freedom of Information Act requests to the State Department relating to observation of the 2007 Kenyan election was that the Ambassador’s staff reported to him and up the chain during the campaign that while there was hate speech showing up on both sides of the ODM/Odinga and PNU/Kibaki contest, the greater weight of it was directed against Odinga.  This surprised me because I had relatively limited separate interaction with anyone else at the State Department besides the Ambassador and his personal approach and attitude in my dealings with him certainly gave no hint of this background from his staff in the context of his tactics in addressing the Kenyan campaign.

Barack Obama image New Orleans

“Achieving USG Goals in Kenya’s Election” (FOIA Update): Ranneberger April 2007 cable shows shift in US approach to upcoming Kenya election to “build capital with the government”

Kenya 2007 Election campaign posters “Kalonzo Musyoka for President” on duka Eastern KenyaA breakthrough on unraveling the story of Kenya’s stolen 2007 election:

This is from my original 2009 Freedom of Information Act request to the State Department for documents related to the 2007 Kenya exit poll I managed as Chief of Party for the International Republican Institute’s USAID funded polling program.

Just after the next election in Kenya, in March 2013, the State Department made its original release of documents to me on this 2009 request, as I discussed in my post here at the time: Africa Bureau under Frazer coordinated “recharacterization” of 2007 Kenya exit poll showing Odinga win (New documents: FOIA Series No. 12)

At that time State withheld one document in full on the basis of “predecisional privilege”; I eventually got that document released on appeal, and heard no more.

Yesterday, I checked in with the State Department FOIA web library to see if there was anything new on Kenya from other requesters and my search showed that an additional document had been published online in 2017, unbeknownst to me, in response to my 2009 request. It is an April 24, 2007 cable titled “Achieving USG Goals in Kenya’s Election” over the signature of Ambassador Ranneberger to the Secretary of State for the Africa Bureau and the Bureau of Intelligence and Research (INR) in Washington. “Sensitive But Unclassified” and released with no redaction. No explanation as to why this document, which pre-dates all of the others released or identified to me in 2013, was published online on April 18, 2017; if it was mailed to me at some point I did not receive it. Nonetheless, I am glad to finally have it (although I wish I had known about it when I published my June 2017 summary story on “The Debacle of 2007 for The Elephant).

The big significance of the cable for me is that it documents that the State Department had in fact changed its approach toward Kibaki and toward the opposition between 2005 and April 2007. This was my perception “on the ground” during the campaign, but I had no explicit documentation until now. It also confirms that as of April, the plan was for a diplomatic observation of the election by State Department personnel only and not an International Observation Mission by the Carter Center as recommended by a 2006 USAID evaluation (referenced in the cable) or by IRI as initiated at the behest of the Ambassador that summer.

Likewise, the cable includes one more recitation that the purpose of the exit poll, formally, was to deter and oppose election fraud through an “independent verification of election results”, not to be “a training exercise never intended to be released” as asserted by Ambassador Ranneberger on a State Department webchat in March 2008 after the quashed but leaked poll had become a “hot potato”, and supported in State Department talking points prepared and circulated in response to media reporting in 2008 and 2009.

Unfortunately for me, when I took over the USAID polling program for IRI in June 2007, the program was operating under a Cooperative Agreement from 2005 that expressed the old policy of being disappointed in the corruption and underperformance within the Kenyan government as reflected in the Anglo Leasing security procurement frauds, the Standard Raid and Artur Brothers, etc. No one at USAID or IRI intimated that the State Department had changed policy and I had to figure it out for myself on the fly.

Here are key excerpts from the cable as published:

3. (SBU) Positioning: Some civil society leaders and opposition members of Parliament have complained recently that the U.S. mission is not close enough to the opposition. In fact, we have close contacts with the opposition from the top levels through the Ambassador to to all levels. However, the opposition longs for the days in 2005 when Foreign Minister Tuju publicly condemned the U.S. mission for supposedly desiring “regime change” in Kenya. They also cite the period in the 1990s when the U.S. mission openly sided against the Moi administration in favor of the multiparty democracy movement. However, the present government, for all its flaws, was elected under conditions widely considered free and fair. As for its indulgence of corrupt members of the political class, we note that the opposition has taken no disciplinary action against notoriously corrupt members within its own ranks. Corruption plagues the entire political class. We will continue to publicly condemn it as a major impediment to Kenya’s progress. We will continue to work closely with the Kibaki administration to achieve USG goals, but we will continue to assert ourselves as completely neutral concerning the election itself. Our strategy is to build capital with the government to be spent as needed over the course of the campaign to address critical electoral issues. We started that process through emphasis on the U.S.-Kenya partnership (reftel B). While we will be strictly neutral among the contending political parties, we will be fiercely partisan in support of the democratic process.

. . . .

8. (SBU) Electoral Reform: As reported in reftel B, electoral reform continues to be a hotly debated topic in Kenya. There is a consensus among all political parties and civil society that reform is required. There are no prominent defenders of the status quo. However, there is no consensus on the scope of reforms and the particulars of those reforms. Since the 2002 general election and the 2005 referendum on the draft constitution were both held under the present electoral system and were deemed free and fair, and since Kenyan society is adequately debating electoral reform, we see no reason for the USG to enter the fray. However, we have urged on all parties a spirit of compromise and an emphasis on the longterm best interests of the nation rather than short term electoral advantage. An opposition leader recently threatened a boycott of elections if his party’s electoral reform demands are not met. We made it clear to him that such intemperate language is not constructive and that boycotts are not acceptable. He stopped issuing boycott threats.

. . . .

– Public Opinion Polling: The International Republican Institute began implementing a public opinion program in 2005. The program seeks to achieve two results: increasing the availability of objective and reliable polling data; and providing an independent source of verification of electoral outcomes via exit polls. These results make an important contribution to elections and political processes. First, genuine free and fair elections require that citizens make informed choices. The polling data adds to the objective data available to citizens on key electoral issues. Second, the exit polls provide an independent assessment of the accuracy of the official electoral results, thereby supporting the assessment of the credibility of Kenyan electoral processes.

This program also enhances democratic political parties by enhancing the likelihood that candidates base their platforms on the key issues and concerns of their constituents, evidenced in the polling data, rather than the traditional focus on ethnicity and personalized political wrangling.

2007 Kenya election Kibaki billboard

I will discuss the context and layers of meaning in this “new old” cable more in the near future.

“Michael & Me” – retrospective thoughts on tying up with Amb. Ranneberger and separating “foreign policy” from “personality”

With a new political appointment announced for the U.S. Embassy in Kenya, Raila Odinga’s criticism at the Center for Strategic and International Studies (CSIS) on his last U.S. visit of the role of the U.S. and U.K. envoys in supporting Kenyan elections for favoring immediate stability over democracy raises the underlying question of how much of the issue has to do with specific envoys and how much is pre-determined policy handed down from Washington or London.

Thus some overdue consideration of my interactions with Ambassador Michael Ranneberger in 2007-08 in that context:

I have written about the actions of the Ambassador as “the point of the spear” that I dealt with in Nairobi with a desire to be cautious to speak to direct knowledge, along with such documents as I have obtained from FOIA, and other direct sources. Addressing specific interactions with the Ambassador and comparing those with his now-disclosed reporting to Washington raises some questions, but does not provide clear answers, as to how responsibility should fall as to decisions about how the State Department played Kenya’s 2007 election during Ranneberger’s tenure.

Obviously I got along fine with Ranneberger for a period of months before we “crossed up” over specifics of my job with the International Republican Institute (IRI) in the month of the election; where I did not agree with his approach, it not lead me to personally dislike him, nor did I feel I was informed adequately or was otherwise in a position to challenge how he was doing his job as Ambassador. Rather my obligation as I saw it was to stand my ground to be able to do my own job. At some level the problem was simply institutional in that Ranneberger felt that his job encompassed managing my work in managing the IRI Election Observation Mission and I did not (nor did IRI as I was told without exception).

When Ambassador Ranneberger and I contradicted each other about issues from our interactions during the 2007 Kenyan election on the front page of the New York Times in a story published in January 2009, soon after the Obama inauguration, Ranneberger was quoted as reacting by claiming that he was being falsely accused by people who were out to get him.

By the time the Times story ran I had been back at my job in the States as a lawyer for defense contractor Northrop Grumman for a year-and-a-half. It was potentially consequential to be called a liar in the New York Times by the serving American Ambassador to a country in which my company at the time had business for the U.S. as a national security contractor.

Fortunately I was treated very well by my client/employer (as when they held my job open for me to take “public service leave” to support democracy in Kenya in the first place). When my security clearance came up for renewal a year later I seemed to draw some flack from somewhere leading to a follow up along the lines of whether I had in some sense let my loyalties “go native” to which I re-iterated my loyally clean conscience. Since my clearance was renewed I did not lose my job. (Likewise, I assumed that it was understood that I had not been lying in my interviews with The Times.)

It was well after the Times story ran that it was mentioned to me in passing that there were efforts from Kenyans to persuade Washington to replace Ranneberger. I was never involved in such efforts and did not know anything about the topic when I was interviewed by the Times July 2008 or in a follow up after the U.S. election that November. The decision to accept the interview request from the Times was strictly mine and I did not consult with anyone about whether to agree or what to say. As I have written here, I requested a meeting with IRI with no reply that October (2008) and had a discussion with the IRI Press Secretary that November but again IRI never followed up with me.

I can say this: I was surprised that the Obama Administration continued to be represented by Ranneberger for more than half of Obama’s first term after the election debacle. I would have assumed that Obama’s message from the campaign of a changed foreign policy approach along with the personal factors of being identified with Kenya through his father and having visited Kenya I believe three times by then, would have given extra assurance that Obama would want to get a fresh start after the previous mess sooner rather than later. But just for these “macro” reasons, not because of any details of the election saga I filled in for investigating reporters.

At some point subsequently I made an extracurricular call on a staffer to Sen. Feingold to inquire as to what response the Asst. Secretary of State and the Asst. Administrator for USAID had provided to the Senator’s demand for answers as to why the USAID/IRI exit poll was being embargoed at his hearing on February 8, 2008 Subcommittee Hearing on the Kenyan elections. I got nothing in the way of cooperation on my inquiry, but did get out of the blue and to my surprise what may have been a less than ingenuous question that “since it seems like we are going to need a new Ambassador” if I had any recommendations. Perhaps this reflected in some fashion Ranneberger’s conspiratorial notion of my motives? [no way to know, it just seems strange; I had no relationship with that office or stature that would warrant the question, especially in the context of being stonewalled on the small actual request for information that prompted the visit]

Here is how I viewed things at the time of Ranneberger’s departure from the Embassy in September 2011 (from a draft I did not post then):

Ambassador Ranneberger has been giving “exit interviews” and traveling to say his goodbyes to return to Washington.  He has indicated that he loves Kenya in particular of his postings and would like to settle in Kenya (although he says he has not acquired property) and he has introduced the woman that he has described as the “Queen” to his “King”, with hints of a future wedding.

The British Royal wedding was a big hit in Kenya, and now we have the “changing of the guard” at the U.S. embassy as well.  Swapping U.S. ambassadors is an unusually high profile public event in Kenya right now because, aside from the U.S. being “the sole superpower” and Kenya being a tourist destination and Nairobi being a big regional haven for “the international community” and being important in the regional economy, Ranneberger himself plays so large in Kenyan media and politics.  Ironically, he is just a bit like Prime Minister Raila Odinga in this way.

Ranneberger has somewhat reinvented his public persona in Kenya the last couple of years, in that he now openly criticizes and challenges Kenyan politicians and is outspoken against corruption.  Readers of this blog will know that I agree with him on corruption and that corruption is nothing new.

His style of saying a great deal in public and taking a high profile was there before, and is largely a matter of taste.  Some people like it, some people dislike it.  I am in between personally.  My ultimate disagreement with him while I was IRI East Africa Director in Kenya was over content and underlying substance during the election, not over style and I have never borne him any personal ill will.

A key difference between Raila and Ranneberger is that Raila is in reality “the second man” in the Kenyan government and power structure behind the President who is extraordinarily quiet in the way that he conducts business and exercises that power while Raila takes a more public role both in Kenya and internationally.  Ranneberger, on the other hand, is in most cases the only American present with a significant public profile.

The recent position as anti-corruption critic is clearly a departure from Ranneberger’s stance during my time with IRI in Kenya during the 2007 election campaign and the aftermath of the vote.

Nine days before the 2007 election Ranneberger appeared in the Standard newspaper in a big full page “exclusive interview” with his official photo. He announced that he was confident that the election would be “free and fair”.

“Q: What are your views on corruption?

A: Lots of people look at Kenya and say lots of big cases have not been resolved because of Anglo Leasing and Goldenberg. I always point out that we have lots of corruption even in the US. These cases take a lot of time to bring to justice. We had the famous Enron case. It took over four years to resolve in a system that works efficiently, yet only a couple of people were convicted. These things take a long time.

There has been substantial effort to fight corruption in Kenya and the award the country won for Civil Service reform [from the World Bank] is a pointer to that effect. The fact that the Civil Service is more professional than ever before is progress as are the new procurement laws recently put in place and the freedom of the Press to investigate and expose corruption. More, of course, needs to be done.

The economy has grown by 7 per cent. How much of that has actually trickled down to the people will again be determined by time.

A career diplomat, Ranneberger has been in Kenya for close to one-and-a-half years, and has served in Europe, Latin America and Africa.”

During previous days The Standard had been running new revelations about corruption in the Kibaki administration from documents from exiled former Kenya Anti-Corruption Commission chairman John Githongo.  Githongo’s personal adventure trying to address corruption in the Kibaki administration is the subject of Michela Wrong’s It’s Our Turn to Eat.

It may be that Kenyans benefited from a re-born zeal for the post-debacle “Reform Agenda” from Ranneberger, given a second chance of sorts under a new U.S. administration. Likewise, Ranneberger’s aggressive behind the scenes style may have been valuable in helping “deliver” finally a reformed Kenyan constitution through the 2010 referendum. At the same time, the bleed over of millions of dollars from officially neutral process support for the referendum into the “Yes” campaign suggests that the “new” Ranneberger was not quite so different–just as the new administration was not quite as different as many expected either.

Kenya 2007 election- Ambassador Ranneberger and Connie Newman at polling station Nairobi

Challenges to the constitutional role of the Kenyan Courts by the Executive Branch did not start this week

[Update: see new editorial from the New York Times: “Kenya on the brink again.

And Gathara’s World: “Kenya’s Future Increasingly Looks Like Its Past”;

Kenya has basically regressed 50 years in the last 7 months and the 2010 constitution’s promise of a democratic renewal is fast fading. If extinguished, history suggests Kenyans may be in for decades of brutal and kleptocratic rule. It will be a steep price for the country to pay for not learning from its past.

The role of the Courts in Kenya is under most conspicuous assault with the Kenyatta government flouting orders to allow the main private television networks back on the air, and ignoring orders to release a high profile political detainee.

In fact, the decision of the Supreme Court to rule against the incumbent President to annul his re-election was unprecedented and extraordinary. It has never warranted complacency.

That one Supreme Court ruling was not a bona fide moment of “Mission Accomplished” any more than the winning of the “yes” vote backed by the United States in the 2010 referendum to approve the new constitution was “Mission Accomplished” for “the reform agenda” that we talked about back in those first years of this decade.

Kenyans will remember the beginning of the Obama Administration when Ambassador Ranneberger was a born-again reformer after getting caught out selling Kenyans on accepting the ECK’s alleged “results” as announced (and subsequently disowned) by Samuel Kivuitu in December 2007. As I learned through the Freedom of Information Act later, Ranneberger had informed Washington in his pre-election cables that the Kenyan courts at that time were not credible.

See quotes from Ranneberger’s cable of December 24, 2007 from my post “Lessons from the 2007 Elections and the new FOIA cables–part two“:

There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.

(For my summary of the 2007 election, see The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With US Connivance” in The Elephant from June.)

After those December 30, 2007 announced “results” were questioned by other observers and not accepted we withdrew our pre-mature congratulations to Kibaki and shifted to support “power sharing.” We helped support negotiations that “settled” the violence among the pols and created openings for ODM politicians within Kibaki’s second administration, along with providing for the Truth, Justice and Reconciliation Commission and the revival of the stalled constitutional reform promised voters by NARC in 2002.

After that experience of 2007-08, when the absence of credible independent courts was so sorely felt, the court system was a recognized need for the new constitution.

The new constitution eventually passed in the 2010 referendum against a spirited campaign led by William Ruto created a new Supreme Court and spurred new hope for a cleaner, stronger judiciary that could perhaps stand up to the cartels and politicians and maybe even a president.

But the “reform agenda” held our focus for only so long, and I don’t think we converted many unfaithful politicians. I never got the impression we were too enthused about the TJRC process, but one way or the other we certainly seem to have completely forgotten about that part of the 2008 National Accord since the Uhuruto regime came in power and made it clear that nothing is to come of the (expurgated) gathered evidence of the wrongs of recent decades.

From the “reform agenda” days, which corrupt Kenyan politician ever got prosecuted by the Kenyan authorities based on Ranneberger’s dossiers? Which corrupt institutions were liquidated to benefit the public? Impunity has proved untouchable and, thus corruption has only gotten worse. The new innovation is that if you get caught and pushed out of the Executive Branch you might get lucky enough to be sponsored in a governor’s race. The dossiers pile up and up.

Meanwhile, the notion of an independent judiciary in Kenya is a fledgling work-in-process. Since September 1 signs have been more negative than positive. Starting with the infamous wakora slurs from the President himself against the Judges, culminating with the inability of the Supreme Court to muster a quorum to hear the challenge to the IEBC holding the “fresh election” on October 26 (after the shooting of the Deputy Chief Justice’s driver in her car), there are questions whether September 1 was a “one off” event. Not one the ruling party intends to see metastasize into an inflection point toward reform and away from Kenya’s historical norms under “Kenyatta and Moi’s KANU especially–the “home” of Uhuru Kenyatta and William Ruto together for most of their years.

Kenya elections: State Dept declassifies memo of Jan 3, 2008 telecon between Secretary Rice and H.R. Javier Solana on “power sharing”

I originally sought this document in a separate FOIA in 2009 because it seemed to me in Nairobi in real time as Chief of Party for the USAID-funded exit poll and election observation programs that this Rice/Solana conversation marked a key  point for Kibaki in locking down a second term. Up until that time, as best I could tell, the EU supported remediation of the bad election (stolen through bribery as I was told by a diplomatic source later that January during the continued violence as I have written) whereas US Ambassador Ranneberger moved to support “power sharing” as soon as the initial U.S. congratulations to Kibaki were withdrawn.  That same day the Kenyan Attorney General called for an investigation of the alleged election results (such an investigation never in substance happened, although it was a key proviso of the February 2008 settlement agreement between Kibaki on behalf of PNU and Odinga on behalf of ODM and the legislation entering the deal into Kenyan law).

The document was withheld in full on national security grounds in the original 2010 FOIA response and again on appeal, then again in 2016 on a follow up Mandatory Declassification Review request after the requisite two year wait.  Today’s mail was the favorable response to my September 2016 appeal..

See from my page with a chronology of links for the election (in particular BBC’s January 3 “Tic-Toc”):

A CHRONOLOGY IN LINKS:

EA Standard–”Envoy predicts free and fair election” (and praises Kenyan administration on corruption), Dec 18 07

Daily Nation–”Local Firm Conducted Exit Poll Expected to Give Provisional Presidential Results”, Dec 28 07

Somaliland Times–”Kenya: Preliminary Findings of IRI’s International Election Observation Mission” Dec 28 ’07

IRI–“Reuters cites IRI Opinion on Kenyan election” Dec. 28 ’07 

EU Election Observation–Statement on Announcement of Presidential Results, Dec 30 ’07

VOA–”US Congratulates Kenya Presidential Vote Winner, EU Monitors Question Results” Dec 30, ’07

Global Voices–“Is Kenya turning into a police state?” Dec 31 07

Telegraph-“Kenya could be facing it’s greatest crisis” Dec 31 07

VOA–”Britain Expresses Concern About Kenyan Election Results” Dec 31 07

EU Election Observation–Preliminary Statement, Jan 1 08

NY Times–”Fighting Intensifies After Election in Kenya” Jan 1, ’08

Telegraph–EU calls for inquiry into Kenya election Jan 1 ’08

Slate–”What’s Really Going on in Kenya?” Jan 2, ’08

USAToday- “Kenyan official calls for vote probe” Jan 3, ’08

BBC- “At a glance: Kenya unrest” Jan 3, ’08

CBS/National Review Online–”Inside Kenya’s Clumsily Rigged Election” Jan 4, ’08

IFES–“Kenya at the crossroads” Jan 4, ’08

Western envoys in Kenya decry difficult pre-election environment, but say too late for substantial reforms, leaving no obvious way forward

[Update: Here is an Oct. 3 Daily Nation story on the status of negotiations and demands among Kenyan politicians and Western diplomats: “Envoys threaten travel bans to politicians derailing poll plans“.  The International Crisis Group meanwhile offers a good brief: “How to have a credible, peaceful presidential election in Kenya“.

The independent European Union Election Observation Mission issued a new 3 October statement saying “decisive improvements are still achievable if Kenyans come together in a constructive manner” while decrying excessive demands and proposed law changes and with confrontation from both sides.

And to refresh the memories of the envoys and candidates here are the September 14 recommendations of the European Union Election Observation Mission for reforms ahead of the election re-run.]

It is in fact very unfortunate that time has been running hard against the 60 day deadline for the “fresh election” necessitated by the failure of Kenya’s IEBC (significantly supported by the United States and, at least indirectly through the UNDP so-called “basket funding”, other donors) to conduct a lawful presidential election on August 8 as determined by the Supreme Court of Kenya.

With the passage of time things like the then-shocking torture/murder of acting IEBC ICT head on the eve of the election are no longer mentioned in such statements as today’s from the envoy group.  Too long ago that murder (passing 60 days) and with no sign of progress or serious effort to solve the case we should of course “accept and move on” that it was simply an unfortunate coincidence (or at most one of those political murders that happen periodically in Kenya that are agreed to be ignored so that we don’t have to face the darker realitity of how “democracy” really works in such a pretty country).  Of no relevance to the August 8 election or its rerun in the hands of the his suspened predecessor who got his job back when Msando was killed even though he had been earlier suspended as ICT director for refusing to cooperate in an audit.

Rather it is noted today that it is “too late” to replace staff hired under the removed Issack Hassan Chickengate regime or otherwise substantially reform the IEBC.

Longstanding CEO Ezra Chiloba doubled-down last week and signed (reportedly) a new (amendment??) with the controversially sole-sourced ICT vendor OT Morpho now owned by a US-based fund and a fund of the Government of France.  Pretty much an “in your face” gesture toward reformers if true. [Update 4/17: The IEBC twitter feed has reported that the OT Morpho contract will be released – I gather this is confirmation of the reported new agreement but we shall see.]

Either the donors have lost all significant influence, if they had any, toward transparency and trust building at the IEBC or they are really gambling hard on selling whatever the IEBC in existing form–without meaningful reform–will offer up on October 26 and the seven days thereafter.

As for me, I think this is a bad gamble, both in terms of odds and because the known character of the other players at the table.

As an American who was involved in the 2007 fiasco from part-way inside and witnessed 2013, I would like to see my Government cease to help underwrite this IEBC as a matter of our own integrity and of our long term ability to provide some future positive influence to the future development of independent democratic institutions in Kenya.

The American dollars supporting through USAID this IEBC would be much better spent on urgent humanitarian needs (see the UNDP’s call for additional funds of more than $100M for Kenya famine relief).

It may be that NASA will throw in the towel and agree to go along to run in a “not so fresh” election without IEBC reforms.  That is for NASA to decide.  I just do not want my Government to interfere in that decisionmaking process unless we are willing to provide some independent assurance of transparency and support for fairness to all Kenyans (not just NASA) that the Government of Kenya cannot be expected to agree to unless we are willing to stand up to them in a way that I have not seen from us in 2007 or 2013.

FREE, FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant

Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.

A classic example of why Kenyans are frustrated with the mix of international Election Observers and Media

Kenya 2007 election Kibaki Tena Kazi iendelee re-election

Can John Kerry help stop Kenya from slipping into Post-Election Violence Again?“, Newsweek, 10 Aug 2017:

Beyond the “Western patrician savior” headline:

. . . .

I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.

 The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.

But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.

Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.

Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.

Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.

Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)

Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.)  Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month).  No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting.  No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.

No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.

Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.

Kenya Election Trump White House congratulates Kenyatta on fair and transpaent re-election

Kenya’s Presidential Election in a nutshell:  1) widespread failure or non-use of purchased electonic Results Transmission System (as in 2007 and 2013); 2) lack of transparent or complete “complementary” substitute (as in 2007 and 2013)

The voting and counting, as I have previously noted, is the same this year as in the past.  The voter register remained messy again with likely more than one million dead voters and plenty of ineligibles, and was not fixed and locked down as required.  From outside appearances so far, however, the EVID system seems to have substantially worked this time which may have been a big improvement from 2007 and 2013 in limiting in person voting by ineligibles.

The RTS system which was to transmit from a unique registered and logged-in KIEMS device for each of the polling stations a scanned image of the finalized executed Form 34A simultaneously to the various tally centres, either was substantially misused or failed to work as advertised and/or some combination of the two.  The Jubilee majority in Parliament early this year, coincident with the turnover from the Hassan-chaired IEBC to the Chebukati-chaired IEBC passed over opposition objection the option of allowing a complementary substitute for the electronic system.  As far as I can tell the IEBC did not actually plan and establish such an alternative system, nor certainly did they effectuate it in any comprehensive, demonstrable, traceable way.

Nevertheless, rather than take the seven days alloted by law, Chebukati announced alleged final Presidential results roughly 72 hours after poll closing.

Is this “close enough for horseshoes and Kenyans” or is more required to successfully conduct and conclude a presidential election in Kenya in 2017?

Update: my email to a friend regarding the Court-ordered review of IEBC presidential election data:

I haven’t finished reviewing the Registrars report in detail, but it seems clear to me that the IEBC declined to provide, as directly ordered by the Court, the evidence that would verify or falsify alleged transmittal of scanned Forms 34A by KIEMS sets from Polling Stations to Tally Centres (Constituency, Cty, Nat’l).

Whatever the Court decides to do about the on the ruling petition as a whole, allowing the IEBC to flex its muscle over the Supreme Court openly in this way would probably pretty well tell us where things are headed on rule of law issues over the foreseeable future and whether there will be a serious challenge to Ruto in 2022-32.

See “Audit Report on IEBC Servers: login trails, Forms 34A and B not provided” in The Star.