It would be easier for Mr. Chebukati and Mr. Kerry to make their case to Mr. Odinga’s supporters with much greater transparency

There is a lot that Kenyan voters could be told that they have not been told about how their votes were represented to them by the IEBC over the last several days since they voted and all the ballots were counted Tursday evening.  As assurances given to the voters in 2007 and again in 2013 in the immediate aftermath of voting those years did not in some substantial respects turn out to be factually sustainable, it is no suprise many Kenyans would want to verify rather than just trust now.

One would expect everyone involved this year to anticipate questions.  There were lots of prominently published warnings of the need for transparency (from the International Crisis Group among others).

Mr. Kerry was Secretary of State in 2013 and presumably has current clearances that would allow him as an individual, now post-government service, to make doublely sure he is fully briefed about the failed Results Transmission System of 2013, as well as other past problems, if he wasn’t before coming to Nairobi last weekend for the Carter Center.  Presumably he could also ask the current US and Kenyan governments to go through the details relating to procurement and use of KIEMS this year.  Then he could answer questions and demonstrate the kind of transparency that would build trust.

Alternatively Mr. Chebukati and the current U.S. government could answer questions irrespective of the Carter Center or other independent Election Obsevation Missions.

A thought about the International Crisis Group statement headined “Kenyans should come together” . . .

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Kenya election banner Kibaki Nakuru 2007

Yes, of course, they “should”.  As we Americans should also, for instance.  How is another question entirely.  Anyone who wants to “help” Kenyans should engage with them and see what they want and need toward that far off goal.

Needless to say, politics and these elections have not historically been involved in bringing Kenyans “together”.  Quite the opposite in fact.

“Shocking” news again from Kenya:  the more things don’t change the more they stay the same.  This election time is quite different than 2007 or 2013 in many ways and not in others.

In regard to post election mechanics (analog and digital), these change a lot each election.  Not as much as the law requires perhaps, but significantly.The process of voting by paper ballot, counting the paper ballots by hand and recording the vote by hand on paper on Form 34A and posting it on the door (or in some cases deciding not to) is fixed and well established, 2007, 2013, 2017.  Kenyans have and do “come together” over this process.  They always do it peacefully.

Not sure why people are seeming to find that to be a novelty.  A great and important thing yes–and it should not be taken for granted. Nor should it be misrepresented as “progress” or any form of “change” each time it is repeated.

So no, this peaceful turnout in long lines to vote by this same process in 2007, 2013 and again in 2017 is not, in fact, an act of faith at all as described by ICG.  It is an act of hope each time.  Arguably for many an act of love for country or subgroup.  Kenyans are broadly faithful, but not in the election process as a whole.

Here is the ICG statement.

Before Kenya’s vote, read Daniel Branch’s The Fire Next Time

If you missed it, amid all the international media scene setters, and very last minute diplomatic appeals, take 9 minutes for “The Fire Next Time: Why memories of the 2007-08 post election violence remain alive.” from Daniel Branch in The Elephant.

Much wisdom on why Kenya has remained stuck following “the debacle of 2007”.

International Crisis Group report on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet

Counting-the original tally

Counting-the original tally

“Kenya: Avoiding Another Electoral Crisis”  March 2017 International Crisis Group paper by Murithi Mutiga

Political tensions are rising in Kenya ahead of elections in August for the presidency and other senior posts. Measures taken now can avert the risk of a repeat of electoral violence that killed hundreds of people in 2007-2008.

.  .  .  .

The equipment for transmitting results from polling places to the tallying centre is as important as the voter kits. Past elections were compromised by lack of transparency in tallying and transmitting. The installation of a transparent, efficient electoral management system would go a long way to assuaging public concerns. Unfortunately, rushed procurement, with little lead-time for testing, may set the IEBC up for failure. That would also deepen suspicions in a situation already marked by significant tension between parties. Government steps to limit the role of external partners, such as the International Foundation for Electoral Systems, that can offer valuable technical assistance, have not helped.

.  .  .  .

International partners should extend technical and financial help to the IEBC to help it better tackle the challenges. This should, however, be done with nuance, flexibility and complete transparency, in light of unfounded claims by the ruling party that external parties are seeking to influence the electoral outcome. International observers should be deployed in time to monitor crucial stages of the electoral process, such as verification of the vote register and procurement of electoral materials.

. . . .

Unfortunately, USAID is still stuck on maintaining minimal, at most, public disclosure, rather than adapt to the recommendations of the Crisis Group and the obvious lessons to be learned from the failure of 2007, especially, and 2013.

While USAID Kenya has confirmed for me that their original December 2015 Request for Agreement (“RFA”) for the $20M “Kenya Electoral Assistance Program 2017” remains a public document at http://www.grants.gov, the subsequent Agreement between USAID and IFES is not being treated as public.  Americans who want to understand our government’s approach to subsidizing the Government of Kenya’s election would be well advised to study the Request for Agreement (rfa-615-16-000001-keap-2017) closely to understand the basic structure, but will need to “ask around” informally to get any actual detail as the election now rapidly approaches.  Likewise, Kenyans who want to have input in the administration of their own election.

Meanwhile, still no documents whatsoever, from my October 2015 request for USAID documents relating to our support for the 2013 Kenya election (!).

See “IEBC must look us in the eye and say, ‘We aren’t ready for August'” by Tee Ngugi in The East African.

Solo 7 — Toi Market

An insider’s explanation of the difference between a “free and fair” election and a “will of the people” election–Kriegler deputy’s memoir

Air Show

 

In his book Birth: the Conspiracy to Stop the ’94 Election, Peter Harris, a South African lawyer who was in charge of the “election-monitoring division” of that country’s Independent Electoral Commission in 1994 (under Johann Kriegler, later appointed by President Kibaki to head Kenya’s 2008 IREC or “Kriegler Commission”, charged under Kenya’s 2008 post-election settlement with, inter alia, investigating the failed presidential vote) elaborates:

“Why would anyone want to run a free and fair election that will remove them from power? . . . Enter the election-monitoring division, whose primary job is to ensure that the election is free and fair. . . .
What constitutes a free and fair is a major issue for us.  The high level of violence can have a major effect.  In short, the tense situation in Bophuthatswana can jeopardize everything.
Declaring an election free and fair depends on a number of considerations, but chief among them is the ‘freedom of voters to vote in secret, free from violence and coercion’, and ‘access to secure voting stations’.
Since his appointment, Steven Friedman and his information and analysis department have been monitoring the situation closely.  Their final talks will be to produce a report that will help the commissioners make a finding on whether the election was free and fair and a reflection of the will of the people.
I rather like the ‘will of the people’ bit; it reminds me of one of those classic legal catch-all clauses that provide an escape route if all else fails.  It is a bit like ‘sufficient consensus,’ that famous methodology for reaching agreement at constitutional negotiations.  In real terms this means if the ANC and the National Party agree there was ‘sufficient consensus’, then bugger the rest.  The real reason I like ‘the will of the people’ is because, as we hurtle closer to this election, it is clear to me that there is a lot that can, and probably will, go wrong.

Under Kenyan law under the 2010 Constitution, as in effect for the last election in 2013, this issue of potential circumlocution about election shortcomings is solved: the Constitution mandates a “free and fair” minimum standard.  I have written previously that I had picked up on discussion in Washington ahead of the 2013 Kenyan election harking back to the “will of the people” hedging language used by Westerners in reference to Moi’s re-elections in the 1990’s.

I ended up in an indirect disagreement through the pages of Africa in Fact magazine with the spokesmen for the Western government-funded election observation missions (the Carter Center from the US and the EU mission) about the significance of the conspicuous absence of reference to the higher (and legally mandated) standard in their Preliminary Statements following the voting.

The titular conspiracy that the Harris memoir discloses, but does not explain in detail, is that hackers penetrated the electoral commission ICT systems and changed vote tallies in progress.  And that the fraud was discovered by the embedded IFES (International Foundation for Electoral Systems) team funded by the U.S., addressed internally within the Electoral Commission and not disclosed at the time.

The hackers were adding votes for third parties apparently not to disrupt the ANC’s win, but rather to manipulate the overall percentage seemingly to avoid letting the ANC have the parliamentary margin to change the new constitution.

The South African Electoral Commission suspended the vote tally without explaining about the infiltration of the system.  A technology work around was created but the overall control system for handling the count broke down.  Through heroic logistical efforts, intricate private political negotiations and with the grace of fortunate “communications” efforts, the election process was “saved” to the extent of being accepted as a rough approximation of the “will of the people” in the context of moving from majority rule in an electorate of 22 million from the existing system of rule determined by competition among no more than a 3 million voter privileged minority.  Close enough for “horseshoes or hand grenades” as we say.  Close enough to an actual count of each individual’s vote for a “free and fair” election? Not so much.

In South Africa in 1994 there was an understood consensus that the purpose of the first broadly democratic election was to transfer power from the minority National Party the majority ANC while containing conflict from other factions “white” and “black”.  The time allocated and resources available made a free and fair election as such wholly beyond the potential of the endeavor.

Thus the situation in South Africa in 1994 was radically different than the electoral management task presented to the Kenya’s ECK and IEBC (and IFES) in 2007 and 2013.

In 2013 Judge Kriegler was back in Kenya some and was a frequent public commentor on contentious matters involving politics and the electoral commission.  It would seem easy to argue that his approach and expectations in Kenya leaned too heavily on the very dissimilar task he faced in his electoral commission experience in South Africa.

New testimony in Kenya’s Parliament on Election Commission “Chickengate” procurement corruption ahead of visit by Obama and U.S. Congressmen

k”Ex-ICT boss tells Parliament that IEBC bungled 2013 electionThe Star July 22, 2015:

“We were put under tremendous pressure to ensure the Evids succeeded. Just days before the certification of the register, we were forced to transfer data, leading to serious discrepancies between the BVR register and the Evids one,” Ong’ondi said. Ong’ondi was speaking when he appeared before the parliamentary Public Accounts Committee chaired by Rarieda MP Nicholas Gumbo. The committee is probing the acquisition and subsequent failure of electronic devices used by the IEBC.

. . . .

He explained how business interests triumphed over responsibility upon the commission to deliver a reliable and effective ICT infrastructure that could guarantee, beyond reasonable doubt, a transparent election process.

He provided various dates on which Hassan and IEBC commissioner Mohammed Alawi reportedly forced him to meet individuals pursuing tenders in the commission, both in Mombasa and in Nairobi.

“I was forced to meet people pursuing highly valued tenders. During a retreat in Mombasa the chairman asked me to meet one of his friends whom he said was interested in seeking business with the commission,” Ong’ondi said.

Yesterday Hassan said he could not remember the said meeting . . .

. . . .

The International Forum for Electoral Systems had raised concerns that the tender for the supply of the devices be cancelled because of time constraints to effectively rollout the infrastructure. He said the technology was rushed, without enough time to train polling clerks, leading to massive failure of the system in many parts of the country. “It was true that some clerks were seeing the devices for the first time during the voting day.

From the Daily Nation:   “Hassan tried to influence BVR kits tender, MPs told

See also: USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers (February 17, 2015)

Why would we trust the Kenyan IEBC vote tally when they engaged in fraudulent procurement practices for key technology? (March 24, 2013)

Nigeria example shows U.S. and other donors must act now on Kenya IEBC technology procurement corruption (April 1, 2015)

Curriculum Cooking Kenya Vote

“Curriculum Cooking”

The “War for History” part fifteen:  Why the conventional wisdom that Kenya was “on the brink of civil war” in 2008 is wrong

I must have read, or at least skimmed, dozens of Kenya articles, papers or policy briefs that include, usually near the beginning, reference to the alleged circumstance of Kenya being “on the brink of civil war” at the time of February 2008 post election “peace deal” brokered by Kofi Annan between Mwai Kibaki and Raila Odinga.  Invariably, this important assertion is without any type of citation or elaboration.  It has become self-referential conventional wisdom.

In the case of political science papers on narrower topics–those along the lines of “What can ‘big data’ tell us about gender disparity in boda-boda fares in rural Kisii eighteen months after Kenya’s Post Election Violence?”–the “brink of civil war” reference is boilerplate contextual introduction.  More significantly the “brink of civil war” phrase is standard in writings on issues of foreign policy, conflict avoidance and resolution, electoral violence specifically and the development of democracy more generally.  In these writings, the validity of this relatively untested characterization matters a great deal.

I don’t say this to be critical–the “brink of civil war” line is found in the writings of personal friends and people for whom I have the utmost regard.  Which in a way makes it all the more important to raise my concern that the terminology may unintentionally mislead those who don’t have personal knowledge of the ins-and-outs of what was happening in Kenya from December 27, 2007 to February 28, 2008 and may skew historical understanding.

There were several types of violence in various locations in the country triggered from the election failure.  My contention is that none of them were close precursors to any likely civil war.

To put it directly, the incumbent administration seized the opportunity to stay in power through the up-marking of vote tallies at the Electoral Commission of Kenya and the immediate delivery of the contested certificate of election to State House for the quick secretly pre-arranged swearing in of Kibaki for his second term before his gathered supporters there.  The incumbent President and Commander in Chief remained in effectively complete control of all of the instruments of state security–the Police Service and Administrative Police and General Service Unit paramilitary forces, along with the military forces and intelligence service–all of which were part of the unitary national executive.

Notably, the Administrative Police had been deployed pre-election to western areas of Kenya in aid of the President’s re-election effort as we in the International Republican Institute election observation were told in a briefing from the U.S. Embassy on December 24th and many Kenyans had seen on television news broadcasts.  While this initially led to disturbing incidences of pre-election violence against individual AP officers, by election day the vote proceeded peacefully with voters cooperating with deployed state police at the polls.

A civil war scenario would thus have involved an insurrection against the State.  I really do not think this was ever likely, most importantly because none of the major opposition leaders wanted it, nor a critical mass of the public without any pre-defined leadership.

While Kibaki’s official “victory” by roughly 200,000 votes rested on a reported 1.2m vote margin in Central Province, significant strongholds of the opposition were in parts of Nairobi and in the west overall, starting in the western/northern parts of the Rift Valley and including Western and Nyanza Provinces.  The violence on the Coast was not broad and extreme and eastern Kenya was not destabilized in the way that it has been in recent times.  The key ‘slum’ areas in Nairobi were fairly effectively sealed in on the eve of the vote as government security forces deployed in Nairobi.  Violence in the slums was no threat to overthrow the government and never broadened to seriously threaten areas where the political class (of whichever party affiliation that year) lived.

Solo 7--Kibera

Solo 7–Kibera

Palpable fear of a mass scale conflict between opposition civilians and state security in Nairobi largely ended when Raila cancelled the planned ODM rally for January 3, 2008 as the GSU continued to surround Uhuru Park shoulder to shoulder.  As best I could tell the EU at that point came around to support the U.S. position in favor of negotiated “power sharing” in lieu of a new election and/or recount or other remediation.  Acts of terrible violence continued to ebb and flow in specific places but Kibaki’s hold on power was not threatened as far as I can see. Continue reading

Nigeria example shows U.S. and other donors should act now on Kenya IEBC technology procurement corruption

For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC.  Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”   “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013.  See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.

From “USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers“, February 17,2005.

Election technology can work, in Africa, just as elsewhere, when it is not sabotaged by corruption.  Nigeria, a much harder case than Kenya, proved that this weekend.

While technology is “not a panacea”, it would have mattered in Kenya in 2007 when it was purchased for Kenya’s ECK at the expense of American taxpayers as an important part of our USAID assistance program if it had not been simply “shelved” by the ECK at the last minute (in a meeting the records of which the ECK refused to turn over to the “Kreigler Commission” charged with investigating the failed election).  It was a central part of the planned assistance program for 2013 shaped on the basis of the Kreigler Commission’s recommendations for what was required based on what was done and not done in 2007.  It was also in 2013 a central and necessary part of election process under the new Kenyan law for the new IEBC, replacing the discredited and disbanded ECK.  It mattered that it did not work, and that it could not have worked because of the failure to procure what was needed when it was needed.

Aside from the basic issues regarding the technology procurements that we have all known about since the 2013 election (and before in some cases)–so thus for more than two years at a minimum–we now have in addition–the “Chickengate” matter where bribery of IEBC officials for ballot paper printing contracts by a British company and its officials, through a Kenyan agent formerly employed by the IEBC, was proven in a court of law to the standards required for criminal convictions.

Yet we see no indication of legal action by the Kenyan government to follow through even on those bribes already proven in the British Court, much less a serious fulfillment of the two-year old recommendation of the Supreme Court of Kenya for the Government to investigate and possibly prosecute the technology procurement cases.  We certainly see that corruption issues are admitted to be remain pervasive at all levels of the current Kenyan government–and perhaps there is a newfound intention to address some of them (time will tell) but apparently no new mention of the IEBC. See “Read the list of public officers implicated in corruption and what the EACC accuses them ofThe Star, March 31. And “Analysis: Kenyatta’s corrupted corruption probe” by Simon Allison in The Daily Maverick, March 30.

What are we waiting for?  Shouldn’t we (the United States) have enough self respect to at least suspend our underwriting of this nonsense and to at least make it clear that we will investigate how our own dollars were spent regardless of what the Government of Kenya elects to do or not do?  Likewise other donors who may have paid for part of this?

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A Guest Post on the State of Kenya@50: “Where Did The Time Go and What Do We Have to Show For It?”

Following is a “guest post” from Andrew J. Franklin, an American now leaving Kenya after more than thirty years of Kenya’s fifty year independent history. This was originally written back in May, after the election failures but months before the Westgate fiasco, about which we learned more damning information with the report this week from the review by the NYPD:
Kenya Map at Nairobi School

It’s mid-May, do you know where your election results are?

Good question! As Kenya prepares to celebrate 50 years of Independence – and, remarkably for Africa, largely free of tribal massacres, wars, natural and/or manmade disasters, successive failed or successful military coups d’etat, vicious secret police operations or state sponsored “disappearances – this steadily failing state is increasingly unable to conduct normal run of the mill governmental functions.

The GOK was able to carry out a national census until the late 1990s, deliver mail and inland cables, find the owners of automobiles allegedly involved in traffic offenses, pay pensions, etc. The more international assistance and support for the GOK and its myriad associated agencies, parastatals, universities and authorities the faster state operations have deteriorated.

The incredible investment in “IT” prior to the 2013 General Elections was not only supposed to prevent or mitigate electoral fraud but was also a belated recognition of just how bad government administration had become.

The IEBC was unable to organize or conduct “voter education” prior to the March 4th polls and is probably unable to find all 120,000 (?) temporary workers hired for these elections; media reports indicate that election- related pay owed to the police, NYS recruits and prison warders has still not been paid.

In essence it is an amazingly foolish leap of faith to expect the IEBC to release any election results for President, Governors and members of the National Assembly and Senate. The longer these results are kept from the public the greater will be arguments that these elections were stolen; 50% of the country is already on a slow boil and the new administration is clearly not able to handle long simmering insecurity in Mandera, Garissa and Wajir Counties or in Western Kenya where criminal gangs are terrorizing the populace.

Reports of a resurgence of Mungiki in and around Nairobi as well as continuing MRC related activity in the “Coast Province” counties – including Lamu – show that the state of national insecurity is more serious than anyone will publicly admit. The heavy handed response on Tuesday, 14/05/2013, by some 400 “security personnel” drawn from the disparate forces within the “National” Police Service to only 250 noisy demonstrators – and 15 or so pigs and piglets – outside Parliament showed an usual lack of any police command and control.

Meanwhile the Obama Administration seems blissfully unaware or unconcerned of the situation in Kenya; our bureaucrats just seem to be hunkering down and covering their asses.

Reports that the police fired live ammunition to “break up the crowd of peaceful demonstrators” after tear gas and water cannon proved “ineffective” indicates a lack of discipline or concern for innocent bystanders or onlookers in offices, shops or even the carparks in the vicinity of Parliament right smack in the CBD!

The use of live ammunition to quell demonstrations in Kisumu in the aftermath of the Supreme Court decision on March 30th elicited little comment in the domestic media and certainly no public protests from the US Embassy. Apparently the rubber bullets procured by the NPS prior to the elections are still in their original packing?

The bottom line is that “Something’s happening here. What it is, is very clear…” To Some!

Andrew J. Franklin, J.D.
Former U.S. Marine, resident of Nairobi since March, 1981

Two “must reads” from Kenya ahead of the opening of the PEV trials at the ICC

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“Why Uhuru and Ruto must attend trials in The Netherlands” by George Kegoro in the Daily Nation.

.  .  .  .
I have found possible answers to this question in the record of the first presidential debate that was organised by the Kenyan media in the run-up to the March elections. The moderator, NTV’s Linus Kaikai, explored the question of the trials with Mr Kenyatta against the fact that he was seeking to become president of Kenya. Specifically Mr Kaikai wanted to know how Mr Kenyatta would juggle between attending his trial and the duties of presidency if he was elected to office.

On the night, Mr Kenyatta provided well-considered answers to questions surrounding their cases and the presidential bid. Referring to himself and his running mate Mr Ruto, Mr Kenyatta indicated that “it is our intention to follow through [the cases] and ensure that we clear our names”. He added that he considered accountability before the ICC as a necessary step towards ensuring that the kind of problems that Kenya faced in 2007 would not recur.

In his own words: “At the same time, we are offering ourselves for leadership in this country, a position that we believe and want to pass on to Kenyans, an agenda that will first and foremost ensure that the kind of problems of 2007 are put to an end.”

Asked whether the cases would affect his capacity to run the country, he said, “many Kenyans are faced with personal challenges and I consider this as a personal challenge”.

He said he considered that since personal challenges did not affect the capacity of other people to continue with their day-to-day jobs, they should not prevent him from doing so as well.

On that night, Mr Kenyatta concluded: “I will be able to deal with the issue of clearing my name while at the same time ensuring the business of government is implemented”.

Earlier, during the same debate, in answer to a question about his understanding of the problem of tribalism and how he would be different from Kenya’s first three presidents, Mr Kenyatta answered that “we have a new Constitution now” and added that “my job as president is to ensure that the Constitution is implemented”.
.  .  .  .

Kenya Bus Service (KBS) and Security at Polling Place

“The Eagle Has Landed: Kenya and the ICC” by John Githongo in The Star.

. . . .

. . . History is being made.

The ICC has redefined Kenya’s foreign policy totally and turned domestic politics inside out. Immediately after the post-election violence in 2008, Kenyans were clamouring for the ICC to intervene given the horrors that had just taken place.

Accountability, justice, impunity, reconciliation and other such words were the primary fodder of political discourse as we headed into the referendum on the constitution in 2010. Indeed, it can be argued that even among those most strongly opposed to the new constitutional dispensation, the dark looming cloud of the ICC and all its implications, especially the public mood that accompanied it through 2008 into 2010, all served to soften them up to demonstrate their pro-change, reformist credentials at a time when the country’s leadership and the messy albeit negotiated coalition arrangement was particularly unsatisfactory to the population.

If it hadn’t been for the ICC, perhaps more of the so-called ‘watermelons’ who pretended to support the new constitution while secretly being opposed to it, would have come out into the open with their true position.

.  .  .  .

. . . Parts of the Kenyan population are in just such a trap: caught between our preaching about and, yes, belief in, good governance and accountability; and its realities when brought to bear in our tribalised, politicised and fragmented political economy. Grimly put – ‘it hurts like hell when it is my tribesman who is being held accountable’. It hurts so much it leads to some of the most gibbering rationalisations of absurdity possible.

Continue reading