I wish I had a clear sense of how this might develop but I don’t. It seems to me that there may be several areas of impact over the next few years:
+Diplomatic leverage of Museveni, Kenyatta, Kigame et al vis-a-vis the United States will be reduced as one of the main US “asks”–UN votes to maintain nuclear-related sanctions against Iran–drops away.
+While I do not foresee the current US administration raising expectations for other US priorities from these East African leaders, the next US administration might feel some greater freedom to address “the democratic recession,” declining press freedom, and other issues on the formal US policy list.
+Oil prices: if a lot more Iranian oil gets to market both in the near term from the immediate impact of lifting sanctions and the longer term from the increase in capacity associated with ramped up foreign investment, the prospects for oil production in Uganda and Kenya will be impacted, especially as related to the 2021-22 election cycle.
+Iran will reassume a stronger role in trade and finance in the region and thus compete more strongly with Israel, Saudi Arabia and the Gulf States.
+Iran will presumably increase its regional naval presence.
+The fall of the Gaddafi regime in Libya and subsequent sad state of affairs in that country reduced one major “petrocash” player in East African politics; an Iran less cash-strapped by UN sanctions might have aspirations to finance East African politicians aside from its espionage/security/terrorism enagement.
Had I known before late afternoon on election day, 27 December, that “the whole reason” for the USAID-IRI exit poll was “early intelligence for the Ambassador” rather than as a tool to deter and detect potential fraud (as our consultant from UCSD and I were explicitly told some weeks before) I might have made more note of the fact that the exit poll by design generally excluded non-living voters as it was based on live interviews of people who had personally come to the polling place and cast ballots.
Admittedly if the purpose of the exit poll was to predict who the ECK would determine to be the winner, as opposed to simply how living Kenyans voted, this was a serious limitation.
One specific idiosyncrasy that afternoon that was immediately salient was the issue of release to the Ambassador of preliminary numbers reported and collated as of two hours before the polls were to generally close. I have no statistical reference or otherwise scientific and peer reviewed material to cite for this observation, but it would have been my seat-of-the-pants judgment as the “person on the ground” with some practical experience in campaigns and elections and even with “machine politics” that deceased voters have a pronounced tendency to vote last in sequence among the various voting blocs.
For those wishing to observe the voting process rather than influence it, there are two related reasons why you will not want exit poll numbers to “get out” to actors in the process before the polls close. One is that potential voters supporting the candidate who is “behind” are perceived to be subject to being discouraged. Even if this is not a big enough factor to “matter” in the primary race at issue, it has been seen to impact the outcome of other races on the same ballot. Another is that some voters who might not otherwise elect to turn out may be spurred to action by the perception that their candidate is trailing. The dead voters are one identifiable bloc that may be particularly susceptible to an appeal of this type.
Had these types of numbers been available to me on election day I would have understood the stakes that much better. Even though this type of voting in the United States peaked before I was born, we can easily see empirical evidence in history of a pronounced tendency of the dead voter bloc to support the party which controls the electoral mechanism, in this case in Nairobi, the ECK. With the kinds of numbers on the voting role, if ODM/Odinga had roughly six percent more live votes as reflected in the exit poll, the percentage of the deceased who needed to be inspired to cast ballots would be much lower than the overall turnout figures.
In corresponding with a diplomat from an allied country (one with which the U.S. has a mutual defense treaty) before the ECK decision I was told that his expectation was that Odinga would win by roughly five percent. I replied that this was interesting as I had decided that roughly five percent was probably the minimum threshold for a margin for Odinga that would result in him being accepted as the winner by the ECK. In hindsight I was probably “drinking the KoolAid” of democratization a bit myself.
The International Criminal Court has ruled that Kenya’s President Kenyatta must appear in the Hague for the status conference in his case on the confirmed charges relating to the Mungiki revenge attacks in the eastern Rift Valley during the post-election violence in early 2008. At the time in question he was KANU leader and Kibaki’s new Minster of Local Government following the January 8 appointment of the “upper half” of a new cabinet prior to the African Union sponsored mediation led by Kofi Annan.
The AU process as structured between ODM and PNU negotiating teams stalemated, with the active resistance of key Kibaki “hardliners” and parts of the PNU coalition, including KANU, but Annan was able to get a last minute deal signed off on by Kibaki and Odinga that ended the immediate crisis on February 28. The settlement led to a Government of National Unity, with the addition of more cabinet ministers and a new, and ultimately temporary position of Prime Minister for Odinga, along with the agreement to appoint commissions to investigate the election itself and the post election violence.
The “Waki Commission” investigating the violence, in an unprecedented display of independence, provided a sealed envelope of key suspects to Annan for potential referral to the International Criminal Court in the event local prosecutions were not forthcoming, along with its extensive public report and redacted annex of persons credibly identified as having a possible individual responsibility for investigation. (The “Kreigler Commission” followed the ordinary practice of presidential commissions from the Moi era and reported privately to the President, and then released a public report disclosing broad flaws in the overall administration of the election but ducking investigation of the central tally at the ECK headquarters in Nairobi as discussed in Ambassador Ranneberger’s cable here.)
Eventually, Annan turned the envelope over to the ICC, which authorized investigation. Charges were initiated by the Prosecutor against six and confirmed by the Court against four in January 2012, of which one was dismissed by the new Prosecutor. So how has the defense of the cases been conducted since, or perhaps more descriptively, the counterattack?
. . . The ICC began to examine the Kenya situation in 2008-09, well before the 2013 election. This constituted a potential risk that continued to increase once the ICC received permission to start a formal investigation and the cases progressed.
The election came into play when two of the ICC indictees — Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin — decided to run for president and deputy president… It was an opportunistic alliance of convenience as the ICC had accused both individuals of masterminding the 2007-08 ethnically targeted violence against each other’s communities. Ironically, this union, the negative ethnicity that accompanied it, and the ICC’s involvement also may have partly deterred violence in the 2013 election.
Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC.
The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at trials.
Mueller suggests that understanding the interplay between law and politics in this situation, while very much business as usual in Kenya where “the rule of law is still weak, politicized and hard to enforce [and] individuals are often sanctioned for trying” raises serious questions of much broader international application as the Kenyatta, Ruto and Sang cases play out on a global stage in the arena of treaties, international organizations and international human rights norms.
Within Kenya there have been two momentous court decisions since the 2007-08 election and ensuing violence. Both were decided at the High Court (the Kenyan trial court, not the Court of Appeal or Supreme Court). The first was the ruling that President Kibaki was not entitled to unilaterally nominate the new Attorney General and Chief Justice. This led to the compromise whereby President Kibaki agreed to obtain the consent of the Prime Minister for a new selection for the Chief Justice, paving the way for the litigation of the CORD petition over the IEBC’s administration of the election process and the 2013 version of the central presidential vote tally (with the new Attorney General as amicus on the other side of the case). The second was the lower court ruling that declined, eventually, shortly before the election date, to decide whether or not ICC crimes against humanity suspects were eligible to run for president under the integrity provisions of the new 2010 Kenyan constitution. Thus in one instance a High Court stood up, and in another one stood aside, and ultimately the larger questions of power and violence at the highest levels within Kenya have been preserved for politics rather than law.
How will the Attorney General and the Kenyan State conduct itself on the international legal stage at its October 7 status conference, and how will Uhruru Kenyatta, as defendant first, and then President, conduct himself on October 8 at his status conference? I suspect Kenyatta will go, in his own personal interest as a defendant, knowing that he remains a long way from actually facing trial so far, even though by attending he will be undermining some of the anti-ICC forces he has unleashed in his counterattack on the Court.
For me, one the biggest tart ironies of the whole saga is the recent role of the African Union in joining the attack on the Court. The crimes alleged arose out of a purely Kenyan election dispute. If the AU wanted to support the inviolate primacy of the Kenyan presidency, why did it not stay out of the matter in the first place in 2008? The involvement of the ICC is the result of the settlement brokered by Kofi Annan as AU-endorsed emissary, which was agreed to personally by Kenya’s sitting president at the time!
Not to distract from the “news”, the big events like a second Nairobi Carrefour coming to Karen and competing with Nakumatt. . . but for anyone who is interested in Kenya and
has not actually lived there in recent years, I highly recommend David Ndii’s latest Friday column from Daily Nation, “On hunger, and a nation in need of a conscience“:
Hunger stalks this land. One third of the respondents to Ipsos Synovate’s latest opinion poll answered yes to the question whether they or other members of their households ever sleep hungry.
The facts are much worse that the poll’s finding.
The most comprehensive information on our food situation is in a report published by the Kenya National Bureau of Statistics in 2008 titled Food Insecurity Assessment in Kenya.
It shows that over half of Kenyans, 51 percent, consume less than what they require on a daily basis. They consume an average of 1,261 calories per day, against a requirement of 1,683 calories — a shortfall of 422 calories or 25 percent of the daily requirement.
Simply put, half of the country suffers from chronic hunger. . . .
Kenya post-independence history is covered in two key current books for general audiences and I recommend both.
The more comprehensive is Charles Hornsby’s Kenya: A History Since Independencewhich I read a few months ago. Charles brings the advantages of both scholarly training and deep personal experience including several years living in Kenya and much prior research and writing and “Kenya watching”, while at same time offers the independence that comes from earning his living separately, presently as a corporate compliance official. Hornsby’s book is over 900 pages of deep detail including significant attention to economic policy and the business history that is so essentially a part of Kenya’s politics. Hornsby’s work will give the basic background on the past interactions and alignments of most of Kenya’s current political figures during the Jomo Kenyatta, Moi and Kibaki years.
Historian Daniel Branch’s Kenya: Between Hope and Despair is also excellent and it is the book I recommended for a quick primer for a friend who was considering a short term election-related assignment in the country in late 2012. At just under 400 pages it is a much quicker read and will well serve the needs of the shorter term generalist for a tighter summary of the key events; along with the crucial Chapter 12 (titled “Back to the Future”) of Hornsby’s history–with the best detailed summary I’ve read of the vital 2007 campaign and election–Branch’s book will give general readers some understanding of the lay of the land in public affairs in Kenya in a few short hours.
One big challenge is slowness of process–certainly no surprise at all which is why my civil society colleagues asked that the contingency plans for this be announced ahead of time by the IEBC (electoral commission). Poll openings at 8-10am appear common in Nairobi rather than scheduled 6am–again no surprise given the logistics involved. It certainly appears that in most cases a paper rather than electronic poll book is in use. Further it appears that complete absence of working electronic BVR for voter identification is common. Some polling streams never received hardware at all; others received too little or found it unusable for whatever reason.
Wholly manual voting then is normal, even though the voter registration was truncated to provide for the use of BVR. Given that the voting is inevitably slow and the turnout is huge, I heard from one fellow observer of polling station workers just taking down names of people who presented IDs and allowing them to vote because it would take too long to try to find and check off names on the paper lists.
The voters are being in general extremely patient with hours of pre-dawn queuing and waiting in hot sun. Ordinary Kenyans in Nairobi certainly are demonstrating both peace and a commitment to the voting process itself.
The unexpected problem, to me and people I have spoken with, is that the ballot boxes were getting close to full with only a relatively small percentage of voters having voted. Presiding officers indicated no backup capacity, but were shaking the boxes to settle the cast ballots..
From the Sunday press conference of Kenyans for Peace with Truth and Justice, the released statement below warrants a careful reading. Leading Kenyan civil society groups make it clear that:
the institutions charged with the regulation of political affairs have displayed a disturbing reluctance to enforce their respective mandates with regard to regulating political competition and ensuring adherence to electoral laws. The IEBC has displayed, within the last week, a tendency to buckle under to political pressure by repeatedly shifting timelines relating to the submission of nomination lists at the whim of the stronger political parties. This reinforces concerns around the independence of the IEBC, which were already raised in connection with the intervention by the executive in procurement of biometric voter registration (BVR) equipment.
The IEBC has also displayed a ‘hands off’ policy with regard to its regulatory mandate in respect of the nominations exercise. This is of particular concern because the IEBC will have to make bold decisions and interventions at the March 4th general elections if the country is to observe a credible, peaceful, free and fair election. Of further concern is the huge delay in rolling out civic education. This is despite the forthcoming elections being of an unprecedented nature in the history of elections in the country.
. . . .
The IEBC is required to regulate and monitor the process by which political parties nominate their candidates. The Commission only monitored that process and did not in any way regulate it. It was left to political parties to regulate themselves with disastrous consequences.
The Registrar of Political Parties has displayed an unwillingness to enforce her mandate and powers conferred upon her office by the Political Parties Act to rein in rogue political actors. . . .
As a result of the bloodshed, the government launched a programme of reforms to turn the police into a more accountable and professional force. Although the appointment of an inspector-general in December is seen as an important step forward, experts warn that the force still lacks the skills and equipment to contain outbreaks of violence around the April elections.
“Kenyans should not expect much difference in terms of capacity and professionalism from the police because they have not acquired much [since 2008],” Simiyu Werunga, a security consultant who heads the African Centre for Security and Strategic Studies, told IWPR.
Blatant discrimination, threats and intimidations, an uneven playing field and a largely unsympathetic public have turned electoral politics into a veritable minefield for women hoping to secure top government posts.
Despite adopting a more gender sensitive constitution back in 2010, in which Article 81(b) stipulates that not more than two-thirds of the members of elective public bodies shall be of the same gender, male-dominated parties continue to make a farce of the little political space offered to women.
Happy Jamhuri Day to my friends and readers in Kenya (and Kenyans in the diaspora–even if you don’t get to vote this time!).
It has been a week since my last post, even though so much is happening on a day to day basis with the Kenyan election and lots of other news in the region–this reflects a few different things. For one, perhaps what we could call a “Christmas armistice”. I live in a peaceful place, and I am enjoying the “festive season” here with my family and am committed to a less digital Christmas. We’ve survived another election here in the States (in spite of ourselves) and there are a several weeks left in the campaign in Kenya and this is a good time to step back a bit. In particular, for my family, this is the last Christmas before my daughter goes off to college. I took my son, our youngest, to get his driver’s license yesterday. These are the things that can’t wait (and that are uniquely my responsibility).
For another, I have been at this blog steadily for three years. It’s been through various evolutions and trends and this is an appropriate time for reflective recalibration about what I want it to be going forward. And in the meantime, there are 601 posts out there for those interested. And too many of those are just “news” and not real writing, and I do know that I want to get back to “better” rather than “more”.
A third is that I have both new freedom, and new constraints that I need to adjust to. When I started this blog, and for the first two-and-a-half years, I was a lawyer in the defense industry. For this reason, I always needed to keep a strong separation between my blog and my professional life. When I attended the African Studies Association or participated in a “bloggers’ roundtable” at the Millennium Challenge Corporation I was on vacation from my job and generally didn’t talk about it much (both awkward and expensive). When I was living in Kenya and working for the International Republican Institute I kept entirely away from the job from which I was on leave back home. Now that I am an independent lawyer, I can synthesize what I know from my prior legal experience and otherwise what I do for a living with the blog to whatever extent I chose, so this is easier. At the same time, I am also now available professionally as a consultant in matters involving East Africa and have accepted some work, so I need to avoid any conflicts arising out the transition from being purely an avocational commentator.
One thing I have reflected on this past week is the issue of how much is similar and how much is dissimilar between the 2007 campaign in Kenya and the 20012/13 campaign. All of the major players are the same, although Kibaki will be transitioning from President to “retired President” as Moi is called, and is thus not a candidate himself. I did get somewhat acquainted at that time and in that environment with Raila and Kalonzo and Mudavadi, and did meet Ruto although never sat down with him. Uhuru and Dr. Willy Mutunga, who was then at the Ford Foundation and is now Chief Justice, were the only people that ever turned down a meeting request on my behalf when I was IRI Director (a nice symmetry in terms of KANU/Establishment versus Civil Society/Activist roles) so I do have some real sense of many of those involved. On the other hand, a lot has changed in Kenya, for better and worse, since 2007/08. So although I know much, much more about Kenya from what I have done from here since I moved back, I don’t want to fall into the trap of relying too much on past experience.
One thing this adds up to is that I do want to write more about “democracy promotion” or “assistance” as a subspecies of “foreign aid” in Africa beyond just the current and most recent past campaign in Kenya. I also want to do more with East Africa as a region in interacting with the United States–I drafted a “year in review” summary regarding IGAD for a bar committee I am participating in which reminded me of interesting things to explore about how domestic politics in Kenya and in the U.S. will influence cooperation and integration among the East African and HOA states. And then there is Somaliland, which is near and dear to my heart, but I am very cautious in writing about.
Today is the third anniversary of the “AfriCommons Blog”, so let me celebrate by being a bit direct.
I lived in Nairobi with my family during the last Kenya elections campaign and the duration of the post-election violence. I certainly saw both Uhuru and Ruto in Nairobi during the uncertain post election period, and they were on local television as well–serving in Parliament together and carrying out their functions as members of the political class. Never saw either with a police rifle, a panga or a can of petrol. No recollection of seeing either of them in the slums or other types of neighborhoods where most of the violence in Nairobi took place.
Rather, the ICC has accused them of being involved in the incitement, organization and funding side of the organized part of the post election violence or PEV.
I don’t recall ever seeing any indication that the two had any type of personal animosity between them or couldn’t get along between themselves. Could be, but not necessarily obvious from the context of funding militias and gangs in the hinterlands on opposite sides of a political tussle. In terms of the political debate it was Martha Karua that squared off with Ruto during the ECK “vote counting” at the KICC and the post-election negotiations.
When I moved to Kenya in June 2007, less than seven months before the elections, Uhuru and Ruto, along with Mudavadi, Raila and Kalonzo were in ODM-K (later to become ODM) and all were running against each other for the opposition presidential nomination through their mutual coalition. Uhuru was KANU leader and titular Leader of the Opposition in Parliament. They were all rivals, but all against Kibaki. Uhuru and Kalonzo split off the main ODM, with Kalonzo running as ODM-K nominee as a “third party” and Uhuru switching sides to Kibaki/PNU, presumably at least in part because he could not hope to get re-elected to his seat in Parliament in Central Province otherwise. (And maybe he was looking to 2012/13.)
If there was a question of anyone not getting along personally, it was more about Kalonzo and Raila than Uhuru and Ruto.
It just seems naive to me to be especially surprised that Uhuru and Ruto would hook back up–and most especially so when they are in a serious jam together with the ICC charges.
Did Uhuru oppose Moi because of Moi’s role in the related violence in the Rift Valley around the 1992 and 1997 elections? Seems to me he stayed in KANU and was anointed as Moi’s candidate for the succession in 2002. Perhaps if he did, as accused, get involved in using the Mungiki in post-election violence in Naivasha and elsewhere, could it have been for instrumental political reasons rather than some atavistic “tribalism”? Has Ruto ever supported a non-Kalenjin candidate before? (hint: Uhuru in 2002)