Best overall international piece so far on Kenya Supreme Court decision

Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”

One of the most important lessons from today is how cowed Kenya’s media really is by the Government.  This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres.  But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.

Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.

For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.

Kenya: 2007 and 2013 media bills bookend the demise of the “reform agenda” as Jubilee Government gets bad marks from public

I hope everyone has had a good Christmas. I am grateful for a comfortable time with family, while saddened by news that a friend in Kenya lost a family member to a shooting by the Police. All of us interested in East Africa are watching South Sudan with great concern.

On Kenya, beyond the steady heartache of one more in the steady stream of police killings, as another year ends, I am struck by one point of clear change from my initial arrival in Nairobi in 2007 to now. The passage of the draconian 2013 Media Bill was a major setback for democracy. The bill seemed clearly unconstitutional when it originally passed parliament. After both Kenyatta and Ruto assured that they would respect the Constitution and the spirit of a free press, Kenyatta sent the bill back with proposed changes making it on balance worse, after which it was passed and signed into law.

Back in 2007 a far less noxious media regulation bill passed parliament just after I moved to Nairobi in June. U.S. Ambassador Ranneberger along with most of the rest of the diplomatic community representing leading democracies spoke out strongly against the threatened intrusion on press freedom. Kibaki declined to sign the bill and it was much watered down. While there was a certain amount of self-censorship the press remained relatively vibrant during the 2007 election campaign. Now that a more troubling law has actually been enacted the diplomatic community including the United States has been largely silent. While there have been protests by journalists and civil society, the Government has predictably brushed these aside, but has not faced open diplomatic pressure from donors.

For some years after the 2007 election debacle the United States was consistently promoting what we called “the reform agenda”. While all the parameters of “reform” were not specified, I think it is fair to say that at its core it was about the continued shifting of power away from a traditionally dictatorial presidency to develop democratic institutions. The original post-Cold War reforms were Moi’s acceptance of changing the law to allow non-KANU parties and the imposition of term limits which led to Kibaki facing Uhuru instead of Moi in 2002. The NARC coalition from that 2002 election finally came completely apart over the executive power issue in the 2005 constitutional referendum on the “Wako Draft” in which the “no” campaign gave rise to the Orange Democratic Movement. “The next big thing” was another effort at constitutional change to disburse and devolve power after the 2007 fiasco at the ECK, where the tallies were changed to keep power with the incumbent president and the country erupted in what seemed to many to be a potential civil war before a deal supposed to deliver a “sharing” of executive power. After a reform constitution was finally passed in the 2010 referendum, the “reform agenda” emphasis has been, in theory, on “implementation”.

The new Media Bill not only repudiates basic constitutionally enshrined values of a free press, but the changes from first passage to final enactment shift power from Parliament to State House. This is only one of the most conspicuous of many areas where the Jubilee Government is moving to re-centralize power with the Executive. May the “Reform Agenda” rest in peace.

In the meantime, the latest Ipsos Synovate poll released this week finds absolute majorities of Kenyans nationwide and in each “province” but Central concluding that the country is moving “in the wrong direction” with a higher percentage of Kenyans trusting the media than any other institution.

Updated: Burgeoning South Sudan crisis will increase Kenya’s leverage over donors, NGOs, international media

The news from South Sudan seems quite serious and disturbing. This is an area of special responsibility for the United States, and needless to say, I hope we are able to help.

Nairobi’s role for many years as the “back office” for international assistance to South Sudan has always given the Government of Kenya extra leverage through control of visas and work permits. My twitter feed indicates that the U.S. is recommending that Americans evacuate South Sudan as the current crisis swells with reports indicating 400-500 people may have been killed.

This brings to bear what I have called “the Nairobi curse” for Kenyans seeking political space, democracy and civil liberties of their own and hope for support from the international community. The thing you always hear, but never read, from internationals working in Kenya is “what if I can’t renew my work permit” because of some offense taken by someone in the Kenyan government.

Back in 2007-08 when I was East Africa director for IRI in Nairobi, we shared space with our separate Sudan program, which was much, much bigger than our Kenya program (and was IRI’s second largest program worldwide I was told, after Iraq). Under my East Africa office, our Somaliland program also got more funding than Kenya. Obviously there would have been repercussions from soured relations with the Kenyan administration. The same situation would pertain for NDI or other international organizations with large permanent regional operations based in Nairobi.

In my case, I arrived in Nairobi on the job in June 2007 expecting my work permit to come through within perhaps a few weeks of ordinary bureaucracy. With no explanation, it was not forthcoming until February 2008 during the late stages of the post election violence period. Thus, I did not have my permit issued yet when I was dealing with our controversial election observation and the issues about whether or not to release the exit poll that showed the opposition ODM winning the presidential race rather than the ECK’s official choice of Kibaki.
At some point that month I was summoned to an Immigration office at Nyayo House (where political prisoners where tortured in the basement during the Moi era) for no readily apparent reason and received the permit shortly thereafter. Of course Nairobi was a much more easy going place before the 2007 election than it is now. Nothing was ever said to connect any of this delay to anything to do with politics or the election and it may have been strictly a coincidence.

Fortunately for me, I was on leave from my job as a lawyer back in the United States, so being denied a permit and thus losing my job in Kenya and having to move my family back precipitously would not have been consequential for me in the way that it would have been for the typical young NGO worker. Everyone has their own story I am sure.

Earlier this year the Kenyan government announced, for instance, that it would start enforcing work permit rules for academic researchers on short assignments. Lots of room to maneuver for creatively repressive politicians.

By the way, Uhuru did end up signing that Media Bill.

Update: See the editorial in today’s Star: Work Permit Crackdown Is Counter-Productive. And the news story, “Rules on Work Permits Tighten“.

Turning Point in Kenya? Update on opposition to Kenyan anti-NGO and Media Bills

“Freedom of Expression is Your Right”–Subversive NGO Solganeering in Kenya’s Neighbor Uganda
"Freedom of expression is your right"

Opposition to controversial Kenya Media Bill heats up” Sabahi Online via AllAfrica.com

Cuts in foreign funding for NGOs intended to silence critics–Human Rights Watch” from Trust.org

William Ruto and his Ethiopian host had chilling message on media freedom” from Macharia Gaitho in The Daily Nation.

Kenya attempts to silence civil society“, Freedom House Spotlight on Freedom.

For perspective (not just to say I warned you so) see my post about Kenyatta and media freedom from December 2009:  “More Government of Kenya action to muzzle media”:

The Standard reports that it has been enjoined  from publishing stories regarding Deputy Prime Minister Uhuru Kenyatta and the purchasing of government vehicles.  Uhuru sought the temporary injunction to protect his interests and reputation.  Seems like a classic case of a high gov’t official using prior restraint to avoid challenge to his job performance.

This is to me another example of fact that the media environment in Kenya is not quite as free as international commentators frequently suggest.  While there is quite a bit of reporting on corruption, the fact remains that it hasn’t dented impunity, and there is a great deal that is known but not reported, and many stories get started but never followed to conclusion.

After the paramilitary raid on the Standard Group in mid-2006, the US eventually made peace with impunity for this attack on the media.  By the summer of 2007, then-Internal Security Minister Michuki–who famously said of the Standard raid that the Standard, having “rattled a snake” should have expected “to get bitten” for its reporting–was the featured speaker at the Ambassador’s Fourth of July celebration, talking of his recent security cooperation tour in the US.  With this background for its critics in the Government, the press can’t help but wonder how far it can go.

And from March of this year: “Attacks on Kenyan Civil Society prefigured in Jubilee ‘manifesto'”

Kenyan Opinion Highlights–five columns of note (updated)

These are four  five recent columns from the Kenyan papers on different aspects of the current malaise in public affairs.  Each makes a general point which I think is of undoubtedly valid, but adds some perspective, analogy or point of fact that struck me as unique and particularly worthy of your attention if you missed it at the time:

“Media bang! NGOs pow! Who’s next?” from Muthoni Wanyeki in The East African.

“We expected better from ‘Defence Force'” from Wycliffe Muga in The Star.

“The Jubilee government’s ‘infantry thinking’ is leading it to intolerance” from Matuma Mathiu in the Daily Nation.

“Religious leaders are letting Kenyans down” from Fr. Gabriel Dolan in the Daily Nation.

“Protect media freedom for development” from Apollo Mboya in the Standard.

“Do not be afraid. The government will protect you.” KANU Revivalists offer alternative to democratic values in Kenya

Shortly after I arrived in Kenya in mid-2007, Kenya’s parliament passed a media regulation bill which faced a storm of international diplomatic criticism as well as domestic protest.

President Kibaki at the time backed down and sent the bill back to Parliament where it was ultimately somewhat watered down. New legislation passed last week goes much further than what was dared under the first Kibaki Administration, in spite of the new constitution. This time there doesn’t seem to be much reaction from international governments–we give our aid money quietly and tiptoe so as not to step on important toes since we have been aggressively accused of imperialism and racism for not intervening to stop the ICC prosecutions of The Now Elected for the mayhem after the 2007 election–but the international media is much more aware of these issues than they were in 2007.

And if the media bill has been put in some limbo, it has been followed by the introduction of the Jubilee bill to assert more state control over civil society and restrict and channel foreign funding to non-governmental organizations. The Uhuruto team had not shown its cards on attacking the media during the election campaign, but civil society was always a known target. See Attacks on Kenyan Civil Society prefigured in Jubilee Manifesto, my post from March this year.  More freedom for the media and for civil society means more restraints on politicians in control of government.  Restricting civil society can help maximize the opportunity to control the media, and vice versa.

Kenyans are confronted once again by the hard choice of whether they are willing to challenge their “leaders” in governmental power to maintain their individual freedoms as citizens.

Uhuru Kenyatta stayed with KANU throughout his life through the formation of TNA as a vehicle for his presidential campaign in this year’s race.  Other than running in elections himself, he has not given much indication over the years that I am aware of being concerned for opening the democratic space and by running as “Moi’s Project” as the KANU nominee in 2002 he chose the old banner.  Of course when you are one of the richest men in Africa, and your mother is one of the richest women, because of what your father took for himself and his family when he was the one-party ruler, you find yourself with plenty of freedom of speech and freedom to politically organize regardless of the details of the system that confront the small people.

In the wake of the Westgate attack, and the desire of the government to avoid scrutiny or challenge, I am reminded poignantly of what Kibaki said when he first ventured out thirteen days after he had himself sworn in for his second term:

January 9, 2008–13 days after the 2007 election (NBC News):

Kibaki made his first trip to a trouble spot, addressing more than 1,000 refugees in western Kenya, many of whom had fled blazing homes, pursued by rock-throwing mobs wielding machetes and bows and arrows.
“Do not be afraid. The government will protect you. Nobody is going to be chased from where they live,” Kibaki said at a school transformed into a camp for the displaced in the corn-farming community of Burnt Forest. “Those who have been inciting people and brought this mayhem will be brought to justice.”
He indicated he would not consider demands for a new election or vote recount.
The election “is finished, and anybody who thinks they can turn it around should know that it’s not possible and it will never be possible,” he said.

Perhaps for those Kenyans that feel sure that the government will always protect them, there is no need for these things of a free media, civil society, the questioning of elections.  Kenya could just go back to the Chinese model of the one party state.  Kenyans who prefer a freer, more empowered citizenship as a matter of values, or who don’t feel they can count on the government to always protect them will have to decide to engage to protect those rights which are of course expressed in law in the new constitution.  See “CIC (Commission for the Implementation of the Constitution) says new media law unconstitutional”, Daily Nation.

Kenyan Media

Kenyan Media

[Updated] “The People’s Court” launch Friday morning in Nairobi

Update: Here is the story from The Star.  And here is “The People’s Court”!

The Daily Nation coverage is here.

10:00am Friday at the Sarova Stanley in Nairobi InformAction and AfriCOG will launch a new online collaboration:

The website is a joint project between AfriCOG and InformAction and is an attempt to present in public all the evidence around the recent elections. Some of that is from the cases filed at the Supreme Court, but it will also include material and information from citizens, observers and others. Citizens will be provided a location to post /Number to send text messages in order to submit any information and evidence they gathered so that the complete truth on the recent elections can emerge.

Importantly, The People’s Court will be an accountability mechanism on the IEBC and the Supreme Court. Analysis of the Court’s decision will be posted on the website hoping to engender critical and constructive discussions on why they took the decision that they did, in the face of the evidence that will be presented.

The People’s Court gives the public unique access to all the evidence filed at the Supreme Court in the Civil Society petition challenging the election process.

By inviting citizen participation, we aim to make institutions accountable and uphold the high democratic standards of the constitution. We also hope that the website will be used as a forum for debate and opinion, celebrating freedom of expression in Kenya and our vibrant tradition of democracy activism.

“Media Zombie” stirs as Kenyan legal process moves forward [updated]

[Update: here is the Sunday Standard, “How Raila’s poll petition may change the whole game”]

“The many questions IEBC needs to clear with Kenyans over elections.” The Saturday Nation

The “media zombie” awakes with a recitation of damning basic questions about the systems employed by the IEBC.

AfriCOG and other Kenyan civil society groups were left as lonely voices before the election while the public relations of the IEBC and the rest of the Kenyan Government, propped up as best I can see so far by the “western donors” (with money from taxpayers like me) and the “aid industry” peddled false assurance. I will have to admit that the situation is significantly worse than I had realized.

And then beyond the systems that were not even seriously in place, we have the specifics of bogus numbers coming out with election challenge petitions by AfriCOG and by the CORD campaign filed today. So much like 2007 only worse in terms of a mass “overvote” in the presidential race.

“Halt the Party, It’s not yet Uhuru”, Wycliffe Muga in The Star.

In the New York Times, Jeffrey Gettleman notes the extreme pressure on Kenya’s judges:

The case is sure to be a test of Kenya’s recently overhauled judiciary. It is now much more widely respected, but some analysts have questioned whether all six Supreme Court justices will be able to withstand the pressure of refereeing such a high stakes contest for power. Even before the election, the chief justice received death threats, and analysts have raised questions about the independence of some of the other justices.

A few thoughts on Kenya’s presidential debate

Even though I’m committed to not attempting to “cover” the Kenyan presidential campaign remotely, yesterday’s debate was one of those big moments in various respects that begs some comment from anyone writing about Kenyan politics and governance.

As far as the election itself, I don’t expect a major impact from the debate or anything specific said. Most voters have made up their minds during the course of the two and a half years that the campaign has been the primary focus of Kenya’s pols. The biggest election variable I would expect would be turnout and neither of the two contenders who could actually win at the end of the day stumbled badly enough or scored enough points in this debate to have a dramatic effect.

Several things stand out for me, however. First is national pride. There is a sense of “joining the big leagues” and capturing an international stage as a modern democracy that Kenyans take pride in here. Sports has been the most similar national rallying point otherwise, and the London Olympics was a disappointment so it is good to see Kenyans have a point of positive recognition as Kenyans. Unfortunately, it comes so late in the campaign that the opportunity for this positive spirit to make a major difference in the preparation for voting and the more general groundwork for the election is limited. Tensions are already high because the realization is sinking in that the election is a big challenge and there will be some problems.

From talking to friends in Kenya and following things I do believe that there is some real value to the determination of many Kenyans to try to prevent the country from being perceived to make a negative spectacle of itself through violence and it makes sense to me to hope for some incremental benefit to this sort of positive pre-election publicity. Nonetheless, the overall amount of election-connected violence in the year before the vote was lower in 2007 in some respects, and people voted very peacefully and in large numbers. When violence occurred after the vote, the vast majority of Kenyans, especially those who actually voted, did not participate. So I don’t think you can measure the risk of violence by the overall sentiments of the population. Energy is much more wisely spent on preparation than prognostication.

A related point to me is that this debate simply shows the world the level of technological and economic development that exits in Nairobi, particularly in the media. The country was very much ready for this in 2007, and in some ways it seems more surprising that this didn’t happen in 2007 than that it did in 2013. More than anything it reflects, to me, the different dynamics of not having an incumbent seeking or planning to stay in office.

The second major impression for me was how the debate showed the disfunction of Kenya’s political parties at a national level. Without established major parties of some coherence other than as platforms for individuals, we end up with six candidates, then eight by court order at the last minute, and almost all the post-debate discussion centered on the contest for power among the individuals or the event of having the debate itself, rather than on anything of real substance about what one candidate believably could accomplish versus another. Congratulations are due more to Kenya’s media than to the political process or the candidates or parties it seems to me.

Some of the other things commented on widely were less significant to me, perhaps because my expectations of what could be possible in Kenya are higher. Martha Karua on stage was not a big moment in my book. She will rank significantly less of a factor in 2013 than Charity Ngilu did in 1997. Karua’s big moment in national leadership was her role as Kibaki’s lion(ess) facing off with Ruto at the Kenyatta International Conference Center December 28-30, 2007, and facing off with both the ODM side and Kofi Annan in the (generally unsuccessful) mediation afterwards prior to the February 28 post-election settlement signed by Kibaki and Raila. She is a strong capable female lawyer, but she doesn’t have an obvious constituency as a candidate for president of Kenya at this point and I don’t see her presence at the debate or her fortunes in this election as a proxy for the general status of women in politics in Kenya.

More striking is the idea of someone facing ICC trial for “crimes against humanity” this spring on stage on an equal footing and an understood stature as one of the two candidates who could become president. That to me is the greatest novelty of this debate.

[Update: See “What we learned from Kenya’s first ever televised presidential debate” at Africa is a Countyespecially for a fun list of tweets from watching the debate in livestream.]