Updated 3 Sept: ICC “Confirmation” hearings underway for Ruto, Kosgey and Sang

A good way to keep up with the proceedings is through the website ICC Kenya Monitor.

The website includes a “watch now” link for the live proceedings using Microsoft Player, detailed daily summaries and various links and resources.

Keep in mind that rulings are not expected until late this year as to whether the charges will be “confirmed” by the judges so as to go forward toward trial in 2012.

Lessons from the 2007 Kenyan election and the new FOIA cables–Part Three

Before doing more narrative of events in 2007 I want to take stock of the significance of various pieces of new information from the newly released pre-election cables I have written about so far.

Personally I am naturally gratified to finally get the first cable where Ambassador Ranneberger himself refers to the exit poll as having been commissioned by the U.S. Mission “to provide an independent source of verification of electoral outcomes” as part of the American effort to support a free and fair election. This is obviously completely different than what he said in a State Department webchat on March 12, 2008, linked on my chronology of Documents and Stories from the Kenya General Election at right, where he said that it was his understanding that the poll was a “training exercise . . . never intended for publication” rather than the use that he described in the pre-election cable.  He went on to assert that it was not a U.S. government poll and the government did not have a right to release it.   (Further detail on the initiative for funding the exit poll comes in what I was told by the USAID official  who called me at the polls on election day seeking the preliminary results:  “The whole reason we did this poll was for early intelligence for the Ambassador”.   I included this in my “hotline” submissions to the Inspectors General of the State Department and USAID.)   Legally the Government having funded the poll with tax dollars had under the standard “data rights” clauses in this and other State Department/USAID funding agreements every right to use the polling data which they were provided under the agreement.

Perhaps the most significant new information for me is Ranneberger’s report on December 24 of credible information of a plan by some in the Kibaki camp to “orchestrate a defeat” of Odinga in the Langata parliamentary race through possible disruption of Odinga voters and bringing in outside votes.  Certainly I was very leery when Ranneberger told me on December 15 that “people were saying” that Odinga might lose that race, but he said nothing to me of orchestrated fraud.  Why was this “explosive issue” not mentioned in his cables to Washington of December 14 (the day I was called to come see Ranneberger) or certainly December 18?  Let me be clear that the reason that I commissioned the special Langata survey was not because I wondered whether Odinga really had more support than Livondo, rather it was in hopes of deterring or combating fraud.  I didn’t tell the Ambassador’s staff or anyone else not directly involved about the survey until I had the results safely in hand.

Another very interesting item from the December 24 cable is Ranneberger’s discussion of the likelihood of the declared winner having a quick swearing in to preclude challenge.  Was this an abstract prognostication or was there some information behind it?  How would an opposition candidate, as opposed to the incumbent, pre-empt the announced plans for a ceremony at the national stadium?  He certainly would have had to secure special cooperation from, at least, both the Chairman of the Electoral Commission and the Chief Justice.

•  Freedom of Information Series (africommons.com)



[Updated April 6 and 16] Senate Hearing this Afternoon on Gration as Ambassador to Kenya

[Update April 16:  The Gration nomination was approved on voice vote by the Committee, vote by full Senate to be scheduled.]

[Update April 6:  The National Journal reported on the hearings which generated relatively little coverage.  The story notes the strong opposition to Gration from Sudan activists but concludes that he is expected to be confirmed, with support from Committee Chairman Kerry (as well as the President) and with no indication of opposition from the Republican side either.  There is probably just too much other news out of Ivory Coast and Libya, along with Sudan itself, for these hearings on the appointments for Kenya and Botswana to get much mainstream media coverage.]

Confirmation hearings for Scott Gration for Ambassador to Kenya and Michelle Gavin (recently Africa director for the National Security Council) for Ambassador to Botswana begin at 2:30pm Washington time.

Here is the link to the video and for subsequent transcript and submissions from the Senate.

See Diplopundit for counter-Gration advocacy from Save Darfur and related Sudan activists who are unhappy enough with Gration as Special Envoy on Sudan to work against his Kenya nomination.  Staying away from domestic politics, and not being a Sudan expert myself, I won’t weigh in other than to say that the Kenya/Somalia job seems much different than the Sudan envoy job.  And to point out that the post in Nairobi has been waiting for him for a long time and that he has loyalty from President Obama as discussed in previous posts.

Previous on Gration:  Discussion about Gration as Ranneberger Replacement Hits the Media and Gration Spoke Out on Obama/Odinga ‘Smears’ in 2008 Campaign and Obama taps Gration.

Kenyan voters have again spoken peacefully in large turnout, and are being heard this time

Again, to me the most important thing about the constitutional referendum has been to let Kenyans make up their minds, decide, vote and most importantly see the process honored in a transparent manner that builds trust and confidence. This appears to be in the process of happening with official results due tomorrow. Ruto, a most visible champion of dissent from the circus at the Electoral Commission of Kenya in the December 2007 general election, a suspect in the investigations of post-election violence, and a mobilizing leader of the “No” campaign, has accepted the outcome based on a transparent process.

While the promise and challenge of democratic reform through a better legal framework remains very much a work in process, the right to vote and have those votes counted in a transparent manner appears to have been restored. This is a very important good thing and worth a moment to cherish.

Election Observation–Diplomacy or Assistance?

At the suggestion of a Kenyan blogger active in democracy issues whom I have long followed and admired, I am going to raise some discussion here about the funding of election observations, who “pays the piper” and how that may matter in practice from my experience.

This will be an ongoing process and I will appreciate any feedback and discussion. One of the things that makes this difficult for me is that I submitted complaints about how the U.S. Ambassador interacted with the 2007 Kenyan Election Observation and Exit Poll programs that I was managing for IRI with USAID funding to the “hotlines” for the Inspectors General of the State Department and USAID, but no substantive action resulted and much of what I have been concerned about has not seen print anywhere. And the same Ambassador is still running my country’s governmental presence in Kenya. So, given that my reason and intention for going to Kenya and getting involved in these things was to be helpful (to Kenyans) what is helpful to say now, recognizing that the past cannot be undone?

Let me start by fleshing out a distinction between types of observations: “diplomatic” observations and “assistance” observations. The goal of a diplomat of course is to represent his country and advance its interests as determined by policy makers. On the other hand, the immediate goal of “foreign assistance”, including “democracy promotion” or “democracy support” is presumably to help others, even though this may be done for any number of reasons involving self-interest. The fundamental problem we had with the IRI observation for Kenya in 2007 was that the Ambassador viewed the observation as a direct part of his endeavors as the controlling diplomat for the U.S. in Kenya in the lead up to the election, whereas IRI, prior to the election, viewed the effort as within an established practice for observations conducted by non-governmental organizations, with funding provided as a matter of foreign assistance through the U.S. Agency for International Development. IRI, like NDI and the Carter Center, is party to a formal international agreement and accompanying code of conduct governing international election observation missions which is intended to provide for independence and objectivity.

It is important not to underestimate the significance of the reorganization of U.S. foreign assistance during the Clinton and Bush Administration, and now continued under the Obama Administration, which places USAID directly inside the State Department [for budget and planning purposes rather than as a matter of formal structure]. As a matter of bureaucratic and political reality, this may make any clear distinction between diplomacy and assistance impossible, especially in the field where an ambassador has largely unchecked powers. When you are dealing with feeding people, or providing health care or regular security training, for example, there may not be immediate tension once you set priorities in allocating resources, but in the case of an election observation mission, you are either committed to the election process in a neutral and objective way or you are not. So if people in the State Department at the level of Ambassador or higher, have the view that diplomatic interests are served by things other than strict neutrality and objectivity in an election campaign, and the State Department controls foreign assistance programs through USAID that provide election support, then as a practical matter there will be tension unless the Ambassador is truly committed to “playing by the rules”.

In Kenya in 2007 the Ambassador was directly sending out large numbers of U.S. government employees as “observers” of the election. I had been warned by USAID staff that the Ambassador considered the IRI international observation mission to be essentially part of his program, to my surprise. Subsequently he told me this was his view himself on one of his after hours cell calls to me to try to micromanage the selection of election observation delegates. Further to my surprise, I was told that higher levels of management at USAID were not in agreement with IRI on our need for independence.

This leads into discussion of another distinction: “national” versus “international”. IRI is a U.S. organization which gets almost all its funding from a combination of the State Department (including USAID) and the National Endowment for Democracy (NED), and works internationally. Notionally, IRI is a “core institution” established under NED, along with its sister organizations NDI, CIPE (the Center for International Private Enterprise, affiliated with the U.S. Chamber of Commerce) and the Solidarity Center (affiliated with the AFL-CIO union organization), but the lion’s share of the overall dollars now come from the State Department rather than from NED. For election observations, IRI will normally include non-U.S. delegates. In the case of Kenya in 2007 there were no other NGOs working internationally that had formal election observation missions to my knowledge, but there were a variety of African organizations, and there was an international observation mission from the Commonwealth. The EU is something of a special case. The EU of course is regional and inter-governmental, but operates an election observation program with professional staffing and that is intended to operate independently.

Backing up a bit to give more context, when I arrived in Kenya at the beginning of June 2007, USAID had no plans for an election observation mission for Kenya–likewise, IRI’s Washington office did not have any desire to seek one. The Ambassador told me early on that he wanted one, and had a list of people he had in mind as delegates, but there was still no plan from USAID to fund it until later when USAID said they would “move heaven and earth” to try to meet the Ambassador’s wishes. On the last day of the fiscal year (September 30) a request for proposals was released by USAID to CEPPS, a consortium of IRI, NDI and IFES, the International Foundation for Electoral Systems. Both NDI and IFES were also already doing USAID work in Kenya for the elections, but the RFP was clearly written in such a way that it was intended for IRI rather than NDI or IFES. A small amount of money had apparently been found for the effort ($270,000) as opposed to several million that the EU spent for their observation. The RFP proposed an international election observation mission with USAID’s involvement to be the approval of the observing organization’s “key personnel”, specified as the chief delegate. Examples of other suggested delegates were given to correspond to the Ambassador’s list, but there was no contractual assertion of a right of government approval except as to the one position.

The Ambassador wanted the lead delegate to be either Connie Newman or Chester Crocker, both former Assistant Secretaries of State for African Affairs with whom he had worked closely. IRI invited both–Crocker declined due to a conflict and Newman, also an IRI board member, accepted. Nonetheless, it was IRI’s position that it was not appropriate for USAID to claim a contractual approval right over the selection of the head of the observation delegation, as opposed to IRI’s own staff. IRI submitted me and the IRI Vice President from Washington that would be the senior IRI staff person coming for the election instead, but USAID refused to accept this. As of the time of the election this was a standoff that had never been formally resolved.

The more substantive dispute was over former Ambassador to Kenya Mark Bellamy. When I mentioned Bellamy in one of the Ambassador’s calls to me regarding the delegates, he said Bellamy would be a bad choice because he was perceived as “anti-government” (i.e., critical of the Kibaki administration). Ultimately when Ranneberger got what was intended to be our final delegate list (I faxed it to him at USAID’s request two weeks before the election) he called me and gave me the full “treatment” to get Bellamy dropped, including saying that he would cancel the funding for the observation otherwise. When I passed this along to my office in Washington, IRI’s president called Jendayi Frazer on his way to the airport for a trip to Thailand over Christmas and then called the Ambassador when he got there. I got the message back that it was agreed that we would nix Bellamy but that I was to accept “no more b.s.” from the Ambassador.

In a nutshell, it was my understanding that there was complete agreement between myself and the senior IRI leadership in Washington going into the election that it was essential that we actively resist further intrusion by the Ambassador on our independence–with a common recognition that the Ambassador was attempting to involve us in things that we could not agree to. Unfortunately, once Ms. Newman arrived in Nairobi the weekend before the election she was the ranking person as an IRI board member as well as retired senior diplomat and the plans to make sure she kept her distance from the Ambassador were not effectuated and it was obvious that she was closely collaborating with him.

There was clear recognition within IRI of the need to maintain independence of the election observation function from the Ambassador’s other agenda, and a clearly expressed intention to do what needed to be done–but we failed. On balance, I don’t think we made the situation worse than it would have been if we had not done an observation at all, but we failed to help and thus wasted some money and a lot of hard work, and as Alex Halperin wrote in Slate in the first story published on our exit poll results, missed an opportunity to advance the interests of democracy.

So the lesson learned from the U.S. perspective should be, in my opinion, that U.S. policy makers need to make clear choices about whether to have “assistance” observations or “diplomatic” observations and recognize that allowing an Ambassador to call the shots makes an observation a diplomatic exercise rather than a bona-fide assistance program. There are in fact rules and regulations that are intended not to allow the Ambassador to override the process, but we have the same Ambassador getting into controversy about election assistance two years later in a new administration, so obviously the problem has not been given a high priority.

[Regarding the Slate article, I had been instructed by our press secretary in Washington not to return Mr. Halperin’s call on the exit poll, but he caught me on the cell on January 2 during the post-election violence and I said that I couldn’t confirm or deny the two reports he had regarding the results of the exit poll. He asked why we would do an exit poll and not release it and I explained that the poll included a great deal of information besides the presidential election results that was part of research that would be published so he should not assume we were trying to hide anything. (My superior in Washington later e-mailed that UCSD would not be able to publish the results under the circumstances, but they did go ahead anyway after the expiration of IRI’s six month exclusive right of publicity, as discussed in the NYTimes coverage.) I e-mailed Washington to report the conversation and noted the irony that when the story hit I was the one who was identified in the international media in defense of a decision that I disagreed with in not releasing the preliminary presidential results, or even making any statement at all about what our plans and intentions were in regard to the exit poll. A Kenyan blogger wrote that I should be subpoenaed to force IRI to disclose the results. ]

Updated: Starehe Recount Concludes–sitting MP Bishop Wanjiru trails 49,306 to 34,871

“MP Falls Short in Recount” from the Saturday Nation

In other words, this race was not close based on ballots cast if the recount is anywhere near accurate. (Update: Will have to look into this further to have an educated opinion about whether that is the case.) Which of course doesn’t touch the other problems of “2 million dead voters” and such.

The next step is to return to the court that ordered the recount.

The candidate receiving the most votes in the recount, then-MP Maina Kamanda, running for re-election on the PNU side, asserts that he lost through “falsification of Form 16A”. This would certainly seem to be an obvious explanation–and the one that would be accord with the evidence that has come to light in regard to the Presidential election and in other constituencies.

I remember Ambassador Ranneberger explaining to us all that recounts were “impossible” when the EU and others called for them at the beginning of 2008.

An important thing to note here is that a recount could have cost various ODM politicians their parliamentary seats, just as it might have cost Kibaki the presidency. Everyone who was tapped as a winner by the ECK by the evening of Dec. 30, 2007 benefited in part at least from leaving the election results as they were claimed to be by the ECK and negotiating among themselves from there. The real losers being of course the voters.

Washington and Nairobi

House Committee on Foreign Affairs March 24 hearing: “An Overview of US Policy in Africa”. Johnnie Carson’s prepared statement.

Carson refers to “flawed elections in places like Zimbabwe, Ethiopia and Kenya” and notes the importance of upcoming elections.

Over the next two years, 27 countries in sub-Saharan Africa will hold elections. We encourage those governments to get it right. To level the playing field, clean up the voter rolls, open up the media, count the votes fairly, and give democracy a chance.

To stay abreast of developments in these important contests I’ve instituted a monthly meeting with NGO’s to discuss upcoming elections, including sharing experiences and best practices, and ensuring that scarce resources are equitably spread throughout the continent.

In Kenya, for example, which is scheduled to hold elections in 2012, we have redoubled our efforts to strengthen democracy and governance in the wake of 2007-2008 post-election violence. Our multi-year investment in strengthening Parliament continues to show strong results: as a result of U.S. institutional capacity building and material support, Parliamentary business is now broadcast live across the country to an eager and interested audience. We also co-hosted, in conjunction with the strong assistance of the House Democracy Partnership, Members of Parliament in order that they benefit from the experience of their peers here on Capitol Hill. As part of our efforts to empower independent voices in Kenya, we sponsored the National Youth Forum, which brought together leaders from all youth-oriented civil society groups to work jointly on democracy and reform initiatives. On the other hand, the Secretary warned that there will be “no business as usual” with those who impede democratic progress. This is not an idle threat as we already revoked the visas of selected high-ranking government officials and sent warning letters to others.

We will continue to work with, support, and recognize Africans who support democracy and respect for human rights. This includes working with governments, local NGOs, and international actors to highlight concerns such as security force abuses, infringements on civil liberties, prison conditions, corruption, and discrimination against persons due to their sexual orientation.

Meanwhile, back in Kenya Macharia Gaitho writes in The Nation about the start of voter registration and the fear and skepticism faced by citizens when they hear the politicians extol the process–Kenyans Must Be Promised Peaceful Elections in the Future.

A common thread is that registering to vote will only be worthwhile if there is a true and honest account of what went wrong in 2007; and if there is rock-solid assurance that the elections will never go so badly again.

Kenyan PM Odinga Speaks Out on Election, “Dubious” Post-Election Role of Jendayi Frazer and Ambassador

We’ll stay on and fight for reforms: Raila from The Sunday Nation

The key quote:

Friends of Kenya played a major role in getting both sides to talk. British Prime Minister Gordon Brown was a key player. He called me at night and talked genuinely and passionately about developments happening in the country. He said he was willing to use his influence to facilitate negotiations. He also spoke to Mr Kibaki and relayed a similar message.

At that time, the US was playing a dubious role. The US Ambassador (Michael Ranneberger) was trying to manipulate diplomats in Nairobi. He was very quick to accept the results. (Then US Assistant Secretary of State for African Affairs) Jendayi Frazer also arrived and played a dubious and ambiguous role.

The British PM was more forthright and engaged genuinely.

On the election:

The election in 2007 will go down as a watershed in Kenya’s history because of the manner in which the vote tallying was manipulated. In the past, people had known that elections are manipulated. But that was before the era of Information Communication Technology and particularly before mobile phones became widely available. The mobile phone changed everything. It was now possible for results to be relayed instantly from every polling station in the country.

We in ODM had set up a very elaborate communication network and, by midday on December 28, we had a good idea what the results were. Media outlets were also announcing results directly from polling centres and the whole country could see what the result of the election was. There is no doubt in my mind and in the minds of many Kenyans what the outcome of that election was.

Eventually, the tallying of the vote was manipulated at the Kenyatta International Conference Centre. Kenyans only blame the Electoral Commission of Kenya (ECK) but it was a far wider operation. ECK officials were heavily coerced by the state security apparatus, including the intelligence services, the police and especially the Administration Police.

This is the first time I have read of the PM speaking explicitly in this way on the record. Obviously Frazer is out of government and into the lobbying world with the firm representing Museveni, as well as her academic post, and Ranneberger’s tenure is winding down–perhaps this is intended to be a signal that the expectations for reform run both ways.

HT CK in Nairobi–had managed to miss this.

Kenya: Ocampo gives list of 20 suspects to ICC

Daily Nation: Kenya chaos: Ocampo gives list of 20 to ICC

The Standard: Ocampa tables 20 names for prosecution

As noted, it appears that Ocampo has broader ambitions than the number of 4-6 top suspects mooted previously in public discussions by others.

We don’t know who won poll, says envoy–Standard reports from 2nd Anniversary of “Power Sharing”

By David Ochami

The US Government has defended its quick recognition of President Kibaki’s controversial win of the disputed December 2007 presidential election.

However, US Ambassador Michael Ranneberger admitted that to date the US was not sure who won the election. Mr Ranneberger on Sunday said power sharing between ODM and PNU had not brought the desired dividend against impunity and corruption.

“The election was disputed. We did our best to get to the bottom of it. It is almost impossible to say who won,” he said.

The envoy spoke on the second anniversary of the signing of the National Accord and disputed perceptions that former Under Secretary for African Affairs Jendayi Frazer’s intervention at initial stages of the post-election crisis favoured Kibaki’s win.

Addressing the Press in Addis Ababa in 2008, Dr Frazer suggested that opposition supporters in Rift Valley were cleansing Kibaki’s tribesmen from the region. She later retracted the reference a few days after Ranneberger led the US’ recognition of Kibaki’s disputed win. As violence spiralled across the country, the US withdrew the recognition.

On Sunday, Ranneberger claimed Frazer’s statements and US recognition was forced by circumstances.

He said the US had little recourse after the Electoral Commission of Kenya declared Kibaki winner.

“We knew there was no possibility of a recount in the circumstances,” the envoy said, adding that after violence broke out, the US led foreign powers in calling for AU mediation and a negotiated settlement.

Two years later and the same ambassador giving similar answers to the same questions, about events from two years ago. I think it is fair to say that he hasn’t been particularly persuasive.

HT to DS in Nairobi