Tag Archives: Maina Kiai

To be clear, State Department records show Department did flatly misrepresent the Kenya Exit Poll in 2008 to avoid pressure to release it

Posted on by
Reply

From a 2017 release in response to my 2009 Freedom of Information Act request on the Exit Poll showing an Opposition win in Kenya’s 2007 Presidential election:

R 170924Z APR 07
FM AMEMBASSY NAIROBI
TO SECSTATE WASHDC 9024

FOR AF/E AND INR/AA

SUBJECT: ACHIEVING USG GOALS IN KENYA’S ELECTION

12. (U) Ongoing Assistance: USAID/Kenya has ongoing support
in the areas of electoral administration, public opinion
polling and political party strengthening. Program
activities include the following:

. . .

–– 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.

Read the whole April 2007 Ranneberger cable at the State Department FOIA site.

Yet, after the election, the State Department developed “talking points to deal with press questions if they came” that told a contradictory story, that the exit poll was a “training exercise” rather than an “independent verification of outcomes” and “assessment of credibility of the Kenyan electoral process”:

IRI Exit poll Q&A

Q — Why isn’t the Embassy pressuring to release its exit poll conducted in conjunction with the December general elections?

 

A — As explained on their website, IRI did not conduct the Opinion poll themselves and have real concerns over its validity. Moreover, the poll was conducted as a capacity building or training exercise. We should not Pressure’ firms to bring a product to market that they don’t believe in, whether it is a defective automobile, or a defective opinion poll.

 

Q — Strategic Public Relations ind Research Limited (SPRR), the firm IRI contracted to Conduct the poll, stands by their results and refutes IRI’s statement.
They said they were “shocked and disappointed” at IRI’s decision. What is your reaction to that?

 

A —This is a highly technical dispute between private parties over raw data that no one
else has even seen. We understand that IRI is examining the disputed data to see if any of it is usable, which sound’s reasonable under the circumstances.

 

Q — In his recent testimony before Congress and in an editorial that he co-wrote, Maina Kiai, Chairperson of the Kenya National Commission on Human Rights,
urged Congress to pressure IRI to release the exit poll. In the op-ed, he said it was important to release the exit poll because there are “Suspicions that the institute has
suppressed its results not because they were flawed but because they showed that Mr. Odinga won.” These suspicions, he said, have fueled mistrust. What is your
position?

 

A — Again, we should not pressure IRI to release information gathered in a training 
exercise, especially when they lack confidence in its validity.

Additional “AF (Africa Bureau) Press Guidance” with the same misrepresentations were issued on July 9, 2008 after the Exit Poll was finally released in Washington by the University of California, San Diego researchers and it was covered in the McClatchy newspapers.

For further discussion, see “Should there by an international Code of Conduct for Exit Polls and Parallel Vote Tabulations?“:

. . . .

The US Government ultimately had rights to our data as a matter of government contracts law and USAID had arguably and ambiguously constrained our ability to release the Exit Poll results to the public in the Amendment to the Cooperative Agreement funding the Exit Poll by providing for “consultation” with the Embassy on “diplomatic or other” considerations. The Cooperative Agreement for the Program was neither classified nor available publicly until I had it released under the Freedom of Information Act years later. The Exit Poll from the 2005 Referendum had been released.

 

Fortunately we have not seen another disaster quite like Kenya 2007-08, but the questions about transparency and release and reporting of information from election verification and anti-fraud tools are still there. For instance in the most recent elections in the DRC and Malawi, as well as the controversy in Kenya in 2013. This could be addressed by pre-established standards or codes if donors, host governments and democracy assistance organizations or implementers are willing to give up some of their case-by-case flexibility and frankly some of the power of controlling information.

 

“Freedom Under Threat”: New report on the spread of laws restricting NGOs in Africa from Freedom House

Posted on by
Reply

The new report “Freedom Under Threat: the Spread of Anti-NGO Measures in Africa was released today. It provides a valuable review of recent developments in counter-democracy push back from governments in power in numerous countries.

In Kenya, here is a good, straightforward recitation of the approach taken after the “UhuRuto” election of 2013 with a Jubilee Party platform calling for a crackdown on independent NGOs said to be modeled after post 2005 repressive measures established by the Meles Zenawi government in Ethiopia (see “Attacks on Kenyan civil society prefigured in Jubilee ‘manifesto’“) and the legal “pitched battle” since:

In Kenya, meanwhile, the new government elected in 2013 made six successive attempts to modify the PBO Act—a progressive law passed by Parliament and signed by the outgoing president just months prior to the elections.49 All of the attempts were loudly opposed by NGOs and the political opposition, and the High Court ordered the government on October 31, 2016, to publish the original PBO Act in the official gazette to bring it into operation.50 The government refused to comply, prompting NGOs to request that two cabinet secretaries—overseeing the Ministry of Devolution and Planning and the Ministry of Interior and Coordination of National Government—be held in contempt of court.51 The court ruled in the NGOs’ favor on May 12, 2017. Rather than implement the court order, however, the government continues to apply the outdated NGO Act of 1990, and it is unclear how the situation will be resolved. The broad-based Civil Society Reference Group, an alliance of over 1,500 leaders of national and international NGOs that ran a multiyear campaign for the adoption of the PBO Act,52 continues to insist on its implementation. Indeed, Kenya represents an interesting case study of the pitched battles that have characterized the struggle between governments on the continent that seek to narrow democratic space on the one hand and civil society sectors that seek to preserve democratic gains on the other.

The moves by African rulers appear related to or inspired by authoritarian trends elsewhere:

Although no attempt is made in this report to analyze laws outside Africa, there are parallels between anti-NGO measures adopted across the continent since 2006 and those adopted in Russia and China—two influential global actors that have forged close ties with African governments. Sudan’s anti-NGO law coincided with the first of several Russian laws,6 closely followed by Rwanda’s measure in 2008. Russia’s second wave of legal restrictions coincided with those of several African countries—notably Ethiopia, Zambia, and Mozambique—while China’s 2016 and 2018 regulations came alongside measures by several other African governments surveyed in this report. It is difficult to establish specific links between the African laws and those adopted by the two global powers, but the close relationships built in Africa since 2000—particularly by China—support a modeling hypothesis.

Kenya Supreme Court clarifies a common sense interpretation of duties of IEBC Chairman as National Returning Officer

Posted on by
1

Daily Nation: “Chebukati cannot edit poll results“:

In their judgement, five judges of the court said where there are discrepancies between results in Forms 34A and 34B, the chairman should announce the results and leave the matter to the court.

The judges said Mr Chebukati has the duty to verify the results as transmitted electronically.

However, whenever he detects errors, he should notify the parties, observers and the public and leave it to the election court.

. . . .

However, the Supreme Court faulted Wafula Chebukati, who is national returning officer, of announcing the winner before comparing the results in Forms 34A and 34B.

The court stated, “There can be no logical explanation as to why in tallying the Forms 34B into Forms 34B into the Forms 34C, this primary document (Forms 34A) was completely disregarded.”

I would say that the underlying factual–if not “logical”–explanation is that Mr. Chebukati gambled on August 11, likely under great pressure, that the “Maina Kiai decision” left unappealed by the IEBC, left a loophole that could be exploited to announce a national “result” early from the purported constituency returns in spite of the knowledge that a huge number of the polling station returns had not been transmitted as required by law.  This gamble did not work and Mr. Chebukati has now obtained from the Supreme Court notice to all interested parties that it still will not work going forward.

Kenya Election “must read” from Maina Kiai: Of suspect opinion polls and a false image of an efficient IEBC (Daily Nation)

Posted on by
Reply

“Of suspect opinion polls and a false image of an efficient IEBC”

Kiai has taken note of a transparently fake “NGO” that has been playing in this years’ campaign space to sell in advance whatever results are going to be announced.  As you would expect in Kenya this “group” does not even seriously try to be subtle enough to be plausible to sophisticated observers, but gets picked up in the Kenyan media in pari passu with bona five organizations without scrutiny (at least until Kiai’s column).

Let’s hope international reporters who “fly in” for Kenya’s election do their homework this time.

Here is Kiai on where things stand as time winds down for election preparation:

. . . .
IEBC’S CREDIBILITY

Something smells really fishy here, verging on being “fake news” meant to influence us with false information.

We clearly have not seen the end of that and we should all try to verify whatever is presented in the media.

And we have been here before. In the lead-up to the 2013 elections, the IEBC was polling as one of the top two institutions that Kenyans had confidence in, together with the Supreme Court, at the time led by Chief Justice Willy Mutunga.

But with all the shenanigans around procurement, gadget malfunctions, “server crashes” and a return to the discredited manual system for voter identification, tallying and transmission of results, the IEBC quickly lost its credibility.

The “chicken-gate” scandals involving the then chairman of the IEBC and the CEO further damaged the IEBC, even if the politicised Ethics and Anti-Corruption Commission eventually “cleared” the chairman.

ELECTORAL MALPRACTICE

I am not holding my breath that this IEBC will deliver credible, free and fair elections with the way it is operating.

It blames the courts for its unpreparedness, but this is more than about competence.

Like 2013, there is an emerging sense of willfulness in the way it is making decisions, short-cutting steps that could mitigate some of the emerging worries.

Incredibly, many of the key staff members who were involved in the previous mangled elections are still in place!

I am baffled that despite the court ruling that declares results final in the polling stations, the IEBC has not yet announced plans to ensure that returning and presiding officers are not only recruited transparently, but are based outside their home areas, to reduce ballot stuffing, especially given that we will probably use the easy-to-manipulate manual identification.

Now more than ever, these officials on the ground will determine the veracity of the election.

RIGGING

Rigging of elections has three basic strands.

The first is ballot stuffing, which is done at the polling stations by all sides (which then effectively balances out); the second is the changes by returning officers of results from polling stations under the guise of tallying, verifying and confirming the votes; and the third and most significant, is the massaging of figures done at the National Tallying Centre in Nairobi.

Note that the Krieglar report refused to go into the rigging at the National Tallying Centre, claiming that the evidence of ballot stuffing from both sides was enough to conclude that the 2007 election was irretrievably flawed.

Privately, Judge Krieglar was afraid that investigating the tallying at the KICC would present a different result from that announced and he did not want to be held responsible for more tensions when different results emerged.

OFFICIALS WITH INTEGRITY

Second, the argument that the National Tallying Centre should be retained to “correct” anomalies from the ground is facile and disingenuous.

It falsely assumes that the commissioners and senior staff are the only ones competent and with integrity, and should be trusted with “rectifying” obvious mistakes like more votes than voters registered.

It is the responsibility of the IEBC to recruit competent persons of integrity at all levels, rather than hire people whose work would need “rectification”.

Every time there is “rectification”, we simply get more rigging.

It is not harder to count the votes in Kenya than in other countries . . . it is just that so much goes in to obscuring those counts, done only at each polling station, so that freedom of action remains at “the center” in Nairobi.

Why “the war for history” matters now: “authoritarian momentum in East Africa” (Part Six)

Posted on by
1

Efforts to retroactively legitimize the 2007 Kenyan election and turn away from the questions of why election fraud was allowed to stand also help divert attention from the current questions of what the United States and Kenya’s other diplomatic “partners” will do or not do now in the face of the current retrenchment of hard won freedoms and democratic openness. Kenya is less free and less secure now than it was in 2007. When a few more years have gone by will 2002 still be a remembered as a turning point for democracy in Kenya or just a false “spring” producing only a temporary thaw in authoritarian governance?

Here is some good context from Freedom House from April of this year.

“Authoritarian Contagion in Africa” by Robert Herman, Vice President for Regional Programs, on the Freedom at Issue blog:

The broader phenomenon illustrated by Kenyatta’s actions [seeking restrictions on civil society and the press] is not just a matter of coincidence or independent imitation. Whether they are selling sophisticated technology to track down dissidents online or sharing legislative approaches that provide a patina of legitimacy for their crackdowns on political opponents, repressive governments are actively working together to push back against nonviolent movements for democratic change. Indeed, such authoritarian solidarity has arguably outpaced collaboration among the world’s democratic states, which are often feckless in mobilizing to defend their own values and assist likeminded activists under duress.

In East Africa, evidence of authoritarian contagion is growing. The governments of Uganda, once seen as a great hope for democracy, and South Sudan, the world’s youngest country and a recipient of hundreds of millions of dollars in foreign assistance, are contemplating restrictive legislation targeting NGOs.

However, the true regional pioneer of this approach has been Ethiopia. Under longtime prime minister Meles Zenawi, who died in 2012, the Ethiopian government issued laws on NGOs, the media, and terrorism that have collectively devastated the country’s political opposition and civil society. The most prominent democracy and human rights groups have been forced to abandon or radically scale back their work, and many of the leading activists have fled into exile.

Other leaders in East Africa and beyond no doubt observed with interest as the international community failed to mount any serious challenge to the Ethiopian government’s repressive actions. Donor countries declined to use their extensive development aid as leverage. Instead they meekly promised to monitor how the new laws were implemented. Whether out of consideration for Ethiopia’s role in combating terrorism in Somalia or fear that the country would turn to China as an alternative patron, the world’s wealthy democracies declined to challenge the Meles regime even after its legislation’s ruinous effects became apparent.

The citizens of Kenya, particularly those who opposed Kenyatta’s presidential candidacy or documented his role in fueling past ethnic violence, may now be paying the price for the international community’s hesitation to act on Ethiopia. It is certainly possible that Kenyatta—facing an international indictment—would have taken the same steps in the absence of a successful model for repression in the region. But his political allies might well have deserted him if they had reason to believe that Kenya would pay some meaningful price for antidemocratic initiatives.

One hopes that the United States and other democratic donor governments will draw their own lessons from these experiences, finally recognizing that the prioritization of security and macroeconomic concerns over democratic performance is a self-defeating strategy. In the long run, repressive states are less stable, less prosperous, and less friendly to democratic partners than open societies, and the spread of authoritarian practices can only damage the interests of Washington and its allies.

Last month Freedom House awarded it annual Freedom Award to Maina Kiai “in recognition of his fearless leadership in advocating for constitutional reform, fighting political corruption, and educating Kenyans of their basic civil and human rights.” The same Maina Kiai who pushed for release of the 2007 IRI/USAID exit poll and challenged the U.S. to live up to its principles: “A Deal We Can Live With” by Maina Kiai and L. Muthoni Wanyeki, New York Times, Feb. 12, 2008.

 

Kenyan reactions to the ICC cases

Posted on by
Reply

Maina Kiai has the best articulation I have seen of the problems with the response to the naming of the ICC suspects at his blog this week under the title “After the Ocampo List: Let’s Get the Facts Straight”:

The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue… More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality . . .

For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent – for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action – from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality. . . .

It is not too late, nor too expensive, for some bit of justice here, it seems to me.  While it is a crime in itself that no one is being prosecuted directly for the election crimes, it seems to me that the prosecution of the police commissioner is at least a prosecution of the direct state actor in charge of enforcing the election theft by suppressing the inevitable protests.  Beyond that the ethnic-related militia killings addressed in the other Ocampo charges are exactly the kind of crimes against humanity that surely do  not have to be tolerated in the twenty-first century in a country like Kenya, irrespective of election competition.  Far from doing anything for the cause of electoral justice, Kalenjin militias being turned against Kikuyus in the Rift Valley helped solidify Kibaki’s hold on power after he was sworn in such openly questionable circumstances.

Related Articles

Unintended Consequence of al-Bashir Invite–more leverage for ICC on Kenya Post-Election Violence?

Posted on by
Reply

From Tom Maliti, Associated Press

NAIROBI, Kenya – Kenya on Friday allowed the International Criminal Court to open an office in the country, a development that comes after Kenya’s commitment to the court came into question when the nation hosted Sudan’s indicted leader last week.
ICC Prosecutor Luis Moreno Ocampo is investigating top Kenyan leaders and businesspeople for their roles in the country’s December 2007 to February 2008 post-election violence that killed more than 1,000 people.

On Friday, Kenya granted the ICC immunity from legal challenges, tax exemptions and other privileges in a letter signed by Foreign Affairs Minister Moses Wetangula.

The move comes only a week after Kenya hosted Sudanese President Omar al-Bashir during a ceremony for Kenya’s new constitution.

. . . .

Kenyan Cabinet leaders, including Wetangula, met with ICC Registrar Silvana Arbia on Friday.
"We have agreed to comply with every aspect of the (ICC) request for the privileges and immunity which their officers require to be able to undertake their work," said Minister of State for Internal Security George Saitoti, who chairs the Cabinet subcommittee on the ICC.

"I trust that the government of Kenya will fully respect its obligations under the Rome Statute," which established the ICC, Arbia said after receiving the letter.

The ICC registrar has been in Kenya since Wednesday to seek government assurances it will cooperate with the court and educate the public about how it operates.

For a cautionary, but realistic view of where Kenya is a the moment, see the latest post from "Maina’s Blog", wherein Maina Kiai stresses the ICC status and throws cold water on the Truth, Justice and Reconciliation Commission:

Impunity and lack of accountability also needs to be addressed via the Truth, Justice and Reconciliation Commission, which is unfortunately now turning into a bigger farce than could have been anticipated! How a potential witness—in a negative way–can Chair the TJRC beats comprehension! How someone who is supposed to lead reconciliation can be so arrogantly obstinate boggles the mind. If Bethuel Kiplagat does not get what conflict of interest is, his competence and integrity as Chair are marred ab initio. Worse, he has now gone out and hired other potential witnesses as staff for the TJRC! Which means that these survivors—and a large majority have been on the margins of society precisely because of the violations they suffered–who are now staff will not be testifying at the TJRC as that would be another conflict of interest! What better way to destroy an institution, and weaken it before it starts than this?

Saba Saba Day–twenty years later, how did U.S. lose the thread?–updated

Posted on by
2

7 July–Saba Saba Day

Democracy versus “realism” in support of other U.S. interests may have been an unavoidably difficult trade off during the Cold War. But it has been more than twenty years now since that excuse passed muster.

My recent post “A Blast From the Past” linked to a 1990 policy paper that seemed to attempt to justify support for Moi by the U.S. for tactical or “strategic” U.S. advantage in the region–post Cold War and pre 1998 embassy bombings and Global War on Terror. Fortunately, the U.S. Ambassador at the time, George H.W. Bush’s appointee, Smith Hempstone, was willing to stick his neck out to support those seeking liberty against Moi’s tyranny. And thus the U.S. is remembered and honored by Kenyans for that assistance as it celebrates its “Second Liberation”.

Now, however, we seemed to have changed. This is what Maina Kiai of the current generation of activists had to say in an interview with columnist Kwamchetsi Makokha last year about the most recent Kenyan election:

Kwamchetsi Makokha: The American ambassador endorsed the results at first. What do you think happened to change his view?

Maina Kiai: I think the way it blew up shocked a lot of people. For whatever reasons, not even the international human rights organisations had anticipated what came to happen. I think in a sense the country and the world had been lulled to sleep by the 2002 elections and the referendum in 2005. We did those fairly and peacefully but fell asleep and imagined that we would do the 2007 elections. But the signs were clear.

I was particularly pleased to see [American ambassador Michael] Ranneberger turning around because what he did was clearly unconscionable and wrong – more so because he was in possession of the exit poll results. He could at least have been equivocal, but in his case, he was very categorical. I am not sure if that was an agenda from him or from the US government. I think it still needs to be interrogated. The fact that as Kenyans we stood up to the American ambassador and said it does not matter – we will take you on – on principle, on what is right and wrong, that was very important.

How sad that where Kenya’s pro-democracy heroes found support from the U.S. through our Ambassador in the Saba Saba era, they are now in a position of speaking of having had to stand up to and “take on” the Ambassador on principle. We can do better.

Kiai, as a Kenyan democracy leader and Harvard-trained lawyer among many other credentials, was asking the same question in January 2009, that I was asking from December 2007 in my position as an American working as local leader for an “international NGO” being funded by USAID: was the agenda from the ambassador personally or from the U.S. government? I tend to think that it was some of both and something that was evolving in real time in the messy way that “foreign policy” gets “made” by our country–but ultimately I guess now one could conclude that by not “interrogating” these obvious questions that the Kenyan people as well as Americans have–and extending Ranneberger’s appointment once again–we have in a sense “ratified” or taken ownership of what went on before and made it “ours” now? I do still wonder what people in Washington knew in “real time” about what was going on on Nairobi.

*Worth noting: Larry Diamond, democracy scholar/advocate, speaks to AFRICOM headquarters on themes from his latest book.