Tag Archives: Kenya 2017 elections

While Washington grapples with another Kenyan election mess, an update on my FOIA pursuit of our policy from 2007

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Still no more documents from USAID from my 2015 request for material involving our support for the IEBC in the 2013 election, from which I finally learned in April of this year that USAID had tasked the American International Foundation for Electoral Systems with making sure the electronic Results Transmission System that failed worked:  “IFES will ensure this system is fully installed, tested and operational for the 2012 election.  Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

In the meantime my Mandatory Declassification Review appeal relating to a document I originally requested from the State Department more than eight years ago relating to the January 3, 2008 post-election telephone conference between U.S. Secretary of State Rice and E.U. High Commissioner Javier Solano is now more than a year old:

September 15, 2016

Re: Case No. M-2016-04563

Dear Chairman:

I am appealing the decision to withhold in full all material identified in Case No. M-2016-04563.

Because all information was withheld in the response to my original FOIA request, FOIA Case No. F-2009-07810 and this Mandatory Declassification Review request, I have not been given much ability to evaluate and argue the details of the withholding on appeal. It is difficult to believe that every bit of information in the identified document responsive to my requests has been and continues to be necessarily kept secret in the interests of national defense or foreign policy.

In particular I note that I requested documentation on the telephone conversation between former Secretary Rice and former EU High Representative Javier Solana based on media reports containing public communications about that call, the subject matter of which was as I understand related to public diplomacy regarding the Kenyan election. Both our country and the E.U. had undertaken assistance programs to support democracy in Kenya, including neutral International Election Observation Missions and I was an NGO employee as Chief of Party for the USAID-funded observation on the U.S. side. It would seem that U.S. interests and law would counsel a tilt toward openness rather than secrecy in this specific context and I ask for your consideration in this regard.

Thank you.

The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

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This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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We all know that Kenya suffers from pervasive corruption; we all have been warned about lack of transparency in the election

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For three years running, Kenya has ranked below Nigeria in Transparency International’s Corruption Perception Index, coming in most recently tied at 145 in the list of 176 countries.

Even the most crucial security sectors, including most especially the police services (which, by the way, have received aid in training and other support from the United States since 1977) are pervasively corrupt and widely feared.

Under the circumstances it would be an extraordinary feat–rooted in a resolute act of will–for the Kenya’s IEBC (and its donors) to pull off a relatively clean and transparent election process.  You will have to excuse me for being concerned after my experiences in 2007 and 2013.

So far, we have had special legislation passed by the ruling party early in the year in parliament over opposition objections to mandate a “manual” backup system for reporting the votes from the polling stations in the event the electronic system “fails” as it did in 2013.  It is now barely more than 30 days before the vote and the IEBC has not explained what this manual system is.  I was told in 2014 by a donor insider that in 2013 the IEBC had no “plan B” in place to obtain results from the polling stations even though they had gone ahead and scrambled, kicked observers out of the tally process, and announced final presidential results after the electronic reporting system was shut down.  Clearly the IEBC needs a “plan B”–whatever it is–both as a practical matter and now as required by law.  And it needs to be transparent, now.

The Kenyan court ruling that the votes as counted at the polling station are legally final and not subject to being unilaterally changed without legal proceedings by the central IEBC process certainly helps–but there must still be a process to gather the numbers as posted on the door of each polling station (and to note any polling stations where the results are not publicly posted as required).  According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.

Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure.  The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement.  What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability.  IFES will ensure this system is fully installed, tested and operational for the 2012 election.  Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.  Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as  USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.

In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).

Warnings about transparency have been outstanding for months from the International Crisis Group (See: International Crisis Group on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet.) and most recently Ambassador Mark Bellamy has published a June 29 assessment for the CSIS Africa Program noting the need for more transparency from the IEBC (Kenya’s Young Democracy Put to the Test.)

This year’s version of the “results transmission system” is wrapped into one big high risk procurement for the “Kenya Integrated Electoral Management System” of “KIEMS” which includes both the electronic voter identification system and the results transmission system.  The ordinary procurement system failed to generate a legally sustainable award for this system.  The new IEBC, running out of time, announced a sole source award this spring to one of the unsuccessful previous bidders, the French company Morpho.

A related company, Safran Morpho, was given a 2012 sole source award for the BVR kits for the 2013 election — which ended up with the election day use of a separate hard copy printed register at each of 30,000+ polling stations rather than an integrated and biometrically verified system.  The sole source purchase in 2012 was announced as a “state to state” transaction–which eventually came out to mean some type of loan from the Canadian Government to the Government of Kenya (involving a Canadian subsidiary of the French parent).  When the sole source transaction to buy the KIEMS system this spring was announced by the IEBC, it was reported in the media as again a “state to state” deal–with no details as to what states or what terms.  The IEBC announcement gives no indication as to whether the reporting of a “state to state” deal is accurate or otherwise whether there is any donor funding involved.

Who has paid for and/or financed the KIEMS system?  Will it work as advertised?  If not, will the IEBC or the donors tell voters ahead of time?

 

Election Violence threat in Kenya — my thoughts on NDI’s new warning 

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1. NDI is right to warn of a risk of violence, highlighting the unprecedented level of division and tension in Kenya related to the competition for power in this election scheduled for August.

2.  Given that the Kenyan Government is led by politicians widely understood to have been major players in the killing and mayhem following the failure of the 2007 election — elevated to office on the basis of their status as tribal champions indicted by the ICC — #1 can hardly be any surprise.

3.  Further, the “reform agenda” intended to address the catastrophe of 2007-08 has long been diverted and shelved.  Zero accountability across the board for the previous election violence.  The Truth, Justice and Reconciliation Commission report was interfered with by the Executive, then shelved with so many other accumulated Kenyan commission reports gathering dust.  No accountability for the bribery of Election Commission members and officers in 2007 (in fact, a cover up), followed by impunity in the buyout of the IEBC last year after Chickengate and the failures of 2013.

4.  The main reform was the passage of the new Constitution of 2010, but in the hands of anti-reform politicians under no serious further international pressure, the main change is more offices to potentially fight over.  There has been some strengthening of some institutions and backsliding in others.  I think everyone agrees there is still widespread extrajudicial killing by police (the biggest cause of death in the PEV) and extensive corruption (which facilitated the collapse of the ECK).

5.  Certainly the performance of the KDF as well from Westgate to Somalia suggests a less disciplined force than most of us perceived in the 2007 and 2013 elections.

6.  Arguably the incumbent Kenyan Administration has more leverage over the US and UK governments now than Kibaki did in 2007.  Although in 2007 Kenya was a key security cooperator with the US on Al Shabaab, at this point the KDF is in Somalia on an indefinite basis, in part as a component of AMISOM in which the US and the UK are heavily invested, with the US now stepping up direct action against Al Shabaab.  In the meantime, South Sudan — the other “nation-building” project with its back office in Nairobi —  is really failing.  Conflict threatens in the DR Congo with Uganda and Rwanda pulling away from democratization progess as the potential threats and temptations may be increasing in the neighborhood.  Obviously it would be hard for the US or the UK, as well as for others, to “cry foul” over a situation like 2007 where the incumbent was not willing to be found to have lost re-election.

7.  It’s too early to know what the dynamics of the campaign will be and I am not closely in touch at all with the hidden backstories this time (like most outsiders, especially those not even living in Kenya this year).  It seems foolish for any of us to gamble much on prognostications or predictions, but the macro risk is surely great enough to warrant some soul searching and some planning.  Part of this is sobriety in recognizing that there is no time left for extensive reconciliation efforts or deeper institutional work that has eluded us over the years.

8.  Boris Johnson will have Kenya on his radar, for better or worse, but it’s hard to guess who outside of AFRICOM will really be engaged on Kenya at a senior level in the US Government before any election crisis, even though the risk is so much more widely recognized this time.  Pre-election funding is much greater than in 2007 but extra resources for a political crisis may be harder to rally.

9.  I remain of the belief that Kenya was not really “on the brink of civil war” in 2008 because such a large part of the violence was instrumental for political gain and none of the politicians would have benefited from a civil war.  In 2013, I agree that some level of optimism about institutions, mostly the Supreme Court, that we don’t necessarily see now had a lot to do with reducing violence, but a big factor was the mass security mobilization – it was understood that protestors would face police and military bullets and not many were willing to take an initiative in that direction.  The benefit of 2013 and the other problems with the institutions pre-election this year is that expectations are low — an openly stolen election would be far less of a shock than in 2007 and as in 2013 the State’s willingness to kill cannot be doubted.  On the other hand, if violence did break out inspite of these initial barriers it might be harder to temper and eventually end than in 2008.

Update: 13 April — See Muthoni Wanyeki’s latest column in The East African, “Polls: the heat is rising, mayhem escalating,” for a look at the current temperature official behavior around the country.

 

Assessing Kenya’s election campaign

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Best new current periodical article:

“Kenya’s elections: turbulence ahead” in New African.

This piece notes the dynamics from the recent by-elections in Malindi and Kericho in the context of the refusal to address the outstanding corruption matters with the IEBC from the most recent general elections, most notoriously the Smith & Ouzman convictions.

It can be no surprise in context to Kenya watchers to see the Uhuruto administration teargassing opposition protests of Hassan and company at the IEBC this week.

It would seem that we can safely say that the demise of any remedial action associated with the Post Election Violence has now brought to an unsuccessful close the notion of a post-2008 “reform agenda” with the exception of the fact of devolution.  De facto implementation of most of the promise of distributed and restrained powers of His Excellency Hon. C.g.h., President and Commander in Chief of the Defense Forces of the Republic of Kenya will await another political epoch.  Certainly the IEBC now lacks the credibility the ECK had in 2006-07.

The American Deputy Secretary of State will arrive soon for a “bonfire of the ivories” and regional confab about how to save what’s left of the African elephants from poaching, giving important visibility and associational credibility again to the messaging of the Kenyatta administration.  I assume that “we” think this will help the elephants in some fashion even if Kenyatta’s family doesn’t have to explain itself on the issue and corruption in other areas continues to burgeon.  Apparently diplomatic manners allow us to memorialize elephants cut down by violence if not so much the PEV victims and witnesses at this juncture.