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

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

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

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

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

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

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

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

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

Solo 7--Kibera

Solo 7–Kibera

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

Washington sees that Uhuru’s security approach is counterproductive; Kenya’s democrats still must counter Uhuru’s DC lobbyists to hope for better U.S. policy by 2017

As Kenya’s politics shift into more focused attention on the 2017 presidential race, Kenya’s security environment has become so conspicuously bad that all sorts of people are noticing and commentating in Washington, with an unusually broad consensus that the Uhuruto administration is failing: draconian and corrupt crackdowns unnecessarily alienating Kenyans whose cooperation is needed; corrupt diversion of resources from national security needs as notoriously demonstrated in the successful Anglo Leasing scams; gross incompetence as reflected in the tragically late response to the Garissa University terrorist takeover.

For but one small sample, see today’s “DefenseOne” with headline “How Kenya’s Counterrerrorism Turned Counterproductive”.  You cannot get more mainstream DC than a Council of Foreign Relations post republished in Atlantic Media’s DefenseOne.

One might expect that a lot of people in Washington would be moved to take a hard look in the mirror under the circumstances, given the U.S. policy of, at best, actively looking the other way as Kibaki stole re-election in 2007, and the fact that the U.S. ended up doing far more to help than hurt the Uhuruto election effort that Kibaki supported for his succession in 2013.  But that won’t happen; domestic politics in the era of the “permanent campaign” stifles critical self-examination in our foreign policy establishment in Washington.  Thus it is incumbent on Kenyans who don’t want the U.S. to repeat its mistakes of 2007 and 2013 to engage with American policy now before it is too late for 2017.

Let me digress to make sure there is no confusion about the U.S. role in 2013 and the fact that the U.S. did more to help than hurt the Kenyatta and Ruto ascension in 2013.

Yes, I know, Jendayi Frazer vociferously accused the Obama administration of “interfering” in Kenya’s 2013 campaign, against Uhuruto, because her successor Johnnie Carson made a single reference in one statement that “choices have consequences”.  In reality, so far as I know, Carson’s statement was “damage control” from within the Obama Administration after Obama himself issued a statement to Kenyans on the election of fully vetted bureaucrateez, saying nothing.  Because Obama made an affirmative statement, saying nothing, he created, predictably, an opening for the Uhuruto public relations team to take to the media in Kenya with the assertion that Obama had made it clear that the U.S. had no concern about the election of those accused of prime roles in the 2008 post election violence.  The United States was thus embarrassed by the questions of whether it was being hypocritical on human rights atrocities and whether it was again, as under the first Kenyatta, and Moi, and Kibaki, sucking up to local powers-that-be in Kenya.  Carson’s attempted corrective, of course, made matters that much worse as it handed a tool to Frazer in the international, U.S. and Kenyan media, and to others within Kenya in the Kenyan media, to fire up Uhuru’s and Ruto’s supporters through a false (and profoundly ironic) victimization narrative.

Contrary to what I think were the honest expectations of some Kenyan human rights and democracy advocates, the consequences of the Uhuruto electoral success were nothing more nor less than those that followed directly from having these two particular individuals at the helm of state.  The United States, so far as I knew at the time, never had any intention whatsoever of any type of sanctions or penalty against either the two suspects or against the Kenyan government–and it seems to me that the way the U.S. handled its support of the IEBC and the immediate environment with the election controversy  definitively demonstrates that the U.S. had no desire or intention to impede Uhuru and Ruto from taking power even if we were not going to openly favor them.  Of course the knowledge of what had happened in the 2008 violence imposed some bit of color on the relationship after the Uhuruto inauguration but it didn’t have any major policy impact except to make the U.S. more circumspect, if anything, in any criticism of the Kenyan government and more ginger in avoiding anything seen as unduly supporting the old “reform agenda” from the first few years after the PEV so as not to offend those inflamed against the U.S. by the Uhuruto campaign rhetoric.

Substantively, the primary apparent U.S. role in the 2013 election was to spend many millions of dollars on a largely nontransparent basis to underwrite the IEBC, even though it turned out to be corrupt, and to facilitate sale and acceptance of the “results” it chose to announce. The “verification” of the margin of just a hair over the 50%+1 threshold without the actual tallying of all the votes.  In essence, the larger established pattern from 2007 if not the goriest of details from the backrooms.  While Ambassador Godec and his boss Carson did not embrace Uhuru in the way that Ambassador Ranneberger and presumably Frazer embraced Kibaki, the bottom line priority remained superficial “stability” over “deepening democracy”.

So where does that leave things now with the “chickens coming home to roost” on that superficiality as the ephemeral nature of the “stability agenda” becomes apparent?

Kenyan democrats must be more sophisticated in dealing with Washington–it is crucial that they engage to counter Uhuru’s new lobbyist teams from the Podesta Group (along with Uhuru’s hiring of Tony Blair and whatever other moves of this type have not be widely reported in the media).

In the wake of the 2013 mess at the IEBC, the U.S. Senate Foreign Relations Subcommittee on Africa initiated a critical unanimous Senate Resolution; that resolution never saw the light of day on the House side.  Why?  Arizona Senator Jeff Flake co-sponsored that resolution and is now Chairman of the Senate Subcommittee.  New Jersey Representative Chris Smith on the House side, whose Subcommittee would not take action on the resolution, is ripe for appeal on these issues as he is supporting a globalized Magnitsky Act approach to broaden and make more consistent U.S. sanction against human rights abuse, and he doggedly and successfully pursued the investigation showing that USAID funding was improperly diverted for partisan ends in the 2010 Kenyan referendum during Ranneberger’s tenure.  In this context, Smith should have no sympathies for actors like Uhuru or Ruto as individuals and certainly should have grave concerns about the monkey business with U.S. assistance at the IEBC.

But given that powerful well-connected people are getting paid by the Kenyan taxpayer to grease the skids in Washington the other way, it is imperative that Kenyans get the truth directly to Washington or risk the consequences of more misguided U.S. policy.  Likewise, Kenyans need to engage directly with the Dutch who funded the NDI pre-election polling in 2013 and the other Western donors who plumped for the ECK/IEBC operations in 2007-13 both through the UNDP and otherwise in the U.S. coordinated basket funding.

+USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers.

UhuRuto Campaign Ad Kenya 2013

UhuRuto billboard March 2013

Again: Is Uhuru on his way to being the next East African authoritarian American darling?

Is Uhuru on his way to being the next East African authoritarian American darling? [originally I asked in April 2013; we are moving that much more quickly along the path with Secretary Kerry’s current visit ahead of Obama in July, as further allegedly necessitated by the Uhuruto administration’s conspicuous incompetence on “security”]

Kenya 2007 Election – How bad were we? – “The War for History” part thirteen

[The previous posts from this series are here.]

In June 2007, newly “on the ground” in Nairobi as the resident Director for East Africa for the International Republican Institute, I was told that one of the President’s senior ministers wanted to meet me for breakfast at the Norfolk Hotel.

Fresh from my first meeting with the American Ambassador with his enthusiasm for the current political environment and his expressed desire to initiate an IRI observation of the upcoming election to showcase a positive example of African democracy, I commented to the minister over breakfast in our poshly updated but colonially inflected surroundings on the seeming energy and enthusiasm among younger people in Nairobi for the political process.  I suggested that the elections could be an occasion of long-awaited generational change.  He candidly explained that it was not yet the time for such change because “there has been too much corruption.”

The current establishment was too vulnerable from their thievery to risk handing over power.

Unfortunately I was much too new to Kenyan politics to appreciate the gravity and clarity of what I was being told, and it was only after the election, in hindsight, that I realized that this was the most important conversation I would have in Kenya and told me what I really needed to know behind and beyond all the superficialities of popular politics, process, law and diplomacy. Mea culpa.

After we ate, the minister naturally left me with the bill for his breakfast and that of his aide.

When it was all said and done, after the vote tallies were changed to give President Kibaki a second term through corruption of the  ECK, and almost 1500 people had been killed and hundreds of thousands of people displaced, and I finished my leave to work for IRI and was back at home in the United States, at my job as a lawyer in the defense industry, I eventually submitted “hotline” complaints to the Inspectors General of the State Department and USAID about what I considered improper interference by the American Ambassador with my work as an NGO employee administering the USAID-funded IRI Election Observation Mission as well as the Exit Poll.

As an exhibit to these complaints, in addition to the statement that I had written for The New York Times after they had called to interview me in July 2008, I prepared a Supplemental Statement to the State Department’s Inspector General.  Seven years after the ill-fated election, having eventually gotten what I could from a round of FOIA requests to State and two rounds to USAID, I am still left with unanswered but concerning questions about what the “agenda” was and was not on the part of the Ambassador, whether it was successful or not, and how it infected my work and the election.  I have no doubt that if we “hadn’t even been there,” to paraphrase the Ambassador, the election would have been stolen anyway, but we were there.  In memory of Peter Oriare and Joel Barkan to whom I dedicated this series for their efforts for a free and fair election and transparent process in 2007, and in respect to my newer Kenyan friends who have been left to continue the work in the aftermath, with courage and determination in the face of increasing repression and threat, here it is:

Supplemental Statement for State Department OIG 2-09

[I have redacted a few names and inserted some sections from my prior New York Times statement for context.]

Election Observers

 

Ocampo, the Donors and “The Presumption of Arrogance”; a story of babes in the woods of Mt. Kenya?

Let me be clear that I have always supported the pursuit of the ICC cases for the 2007-08 post election killings in Kenya.  Not because the ICC was necessarily a good option but because it was that or nothing.  My country, the United States, officially as a matter of foreign policy articulated by the State Department, always supported prosecution of the post election violence by a “local tribunal” in Kenya.  Which is quite exactly like being in favor of Santa Claus bringing a cure for Ebola in Sierra Leone.  In no way am I against either, but there are obviously more challenging questions begged by the devastating facts presented in these situations. (See “Christmas Shopping–For Sale: Brooklyn Bridge, Ocean Front Property in Arizona, Local Tribunal in Kenya”)

In the context of the “don’t be vague, go to The Hague” vote by Kenya’s Parliament, our U.S. position has been inevitably opaque.  We are not and have never been a member state of the International Criminal Court.  As a general proposition under U.S. law our officials are not to be involved in supporting ICC prosecutions, subject to certain potential exceptions.  Nonetheless, as permanent members of the United Nations Security Council the diplomatic strategy of the Kenyan government in the second Kibaki administration put us to a decision as to whether or not to support Security Council intervention to interrupt the ICC prosecutions in the two Kenyan cases.  We declined to do so, to our credit in my opinion.

How to understand what has happened with the pre-trial decisions by Prosecutor Bensouda to drop the charges against the two defendants in the Government/PNU case, Muthaura (on 11 March 2013) and Kenyatta (on 5 December 2014), while the trial in the Opposition/ODM case proceeds?

Almost seven years after the post election violence we are left with complete impunity on the side of those who initiated the conflict by stealing the election and employed two of the three types of large scale killings at issue in the charges of “crimes against humanity”.  ICC Prosecutor Ocampo’s Government/PNU case originally included Kibaki’s Commissioner of Police, Major General Hussein Ali, but the Pre-Trial Chamber declined to confirm the charges against Ali, as it declined to confirm the charges against Henry Kosgey on the Opposition/ODM side.  The greatest cause of death as identified by the Waki Commission report was gunshot wound – understood to be primarily administered by the General Service Unit, Administrative Police and Kenya Police Service forces under Ali’s command.  The “body count” of those who were identifiable by tribe as reported by the Waki Commission was greatest among the Luo–those targeted primarily by the Government side rather than by the militias associated with the Opposition.

So whatever happens with the Ruto and Sang case, the winners of the post election conflict–those on the side of those who stole the election in the first place and who killed to keep and enforce power–remain comfortably immune from any negative consequences, as well as with the benefit of what they have “eaten”.  No more than two individuals face any charges of the many people involved in raising and facilitating the ethnic militias in the Rift Valley that killed innocent Kikuyu in revenge for Kibaki’s election theft and to some extent for leverage in a post election political dispensation, as well as to remove future Kikuyu votes and occupy land as in 1992 and 1997 (when Kenyatta and Ruto were partnered in KANU as now in Jubilee).

Post-election IDP camp at Naivasha, Kenya, 2008

Post-election IDP camp at Naivasha, Kenya, 2008

I do not necessarily blame Ocampo for having tried and failed. He took on what was perhaps inevitably a nearly impossible task given his lack of actual power. I do very much fault him for raising expectations and seeming to believe as well as play to his own press, and then quitting before the end. I am inclined to think that he simply had no realistic understanding of what he was getting into in going after Kibaki’s closest lieutenants on their own turf and was tone deaf to learning.  He seems to have believed that the perceived global stature of the International Criminal Court and his office meant a lot more than it actually did in the warrens of power in Nairobi, no matter how many painted his face on the side of a matatu or a duka. It is hard to imagine how he could have failed to seriously pursue Kenyatta’s telephone and bank records before he left the prosecutor’s office in July 2012. Or how he could have seriously convinced himself that he or his successor would somehow get the records through some notion of “cooperation” from the second Kibaki Administration in which Kenyatta was a key Minister throughout, from his initial appointment during the post election violence on January 8, 2008, as well as the Deputy Prime Minister from April 2008.  Did he pursue evidentiary assistance formally from the United States under those potential legal exceptions I mentioned?

For details on the cases, as I wrote in a post in October ahead of the ICC Status Conference, “Susanne Mueller’s article from the Journal of East African Studies earlier this year, “Kenya and the International Criminal Court (ICC): politics, the election and the law”, perhaps gives the clearest account of how the game has been played so far.”

I do not doubt that Ocampo showed personal courage in the prosecutions of Argentina’s ex-generals and compatriots in establishing the credential that led to his appointment as the ICC’s first prosecutor. Nonetheless, the key distinction in that case was a change in government that made such prosecutions feasible. That did not happen in Kenya because the stolen election was allowed to stand, with an eventual settlement that if anything made the situation harder by adding the perpetrators on the Opposition side into that Government as more junior parties, helping to maintain unity for impunity.

As for my country, we tried to have it both ways by supporting impunity for the theft of the election–having at the very best “actively looked the other way” while it was happening– then notionally supporting “justice” for the killings that followed. Not an idea that was ever likely to fit down a real chimney in Kenya.

And yes, I do have more stories for “the war for history” series.  For instance, yes, the State Department did know before the vote in 2007 that the Kibaki Administration had dispatched the Administrative Police to opposition strongholds in support of the Kibaki re-election effort.  Of course if the “AP” hadn’t gotten caught by those Kenyan television journalists it wouldn’t have been such a problem; certainly we Americans did not say anything publicly.  Now that Kenyatta’s grasp on power is that much firmer with the ICC case over, I don’t doubt that he will further ramp up his efforts to formally and informally undermine the new Constitution and shift power back to the Presidency and away from the media, civil society and the citizenry at large to avoid such inconveniences going forward.

This week I got an email from the State Department’s Bureau of Democracy, Human Rights and Labor with a Request for Proposals for “Countering Closing Civic Space in Kenya and Uganda”.  It’s a nice idea to support those trying to hold on to the freedoms they have won, and the amount of money–as much as $841,000.00 for a regional program for the two countries–would not have been trivial if it weren’t for the many millions we spent on the Kenyan IEBC during its 2012-13 “#Chickengate” binge, and on helping to sell its incomplete at best results to the public in the last election, for instance, among many other examples of the things we keep doing to contradict ourselves on support for rights, reform and democracy.  And of course our much deeper overall long term “partnerships” with the Museveni and Kenyatta governments.

I may be the one showing naivete now, but I do actually believe that by and large most people in my government, as with the other Donors, do wish for better for Kenyans in terms of justice versus impunity, and for the protection of rights and the establishment of a meaningful democracy where voters have agency.  All other things being equal, they would like Kenya to be a country in which powerful killers go to jail and votes count.  It’s just that they can’t bring themselves to make the hard choices or take the risks required.

“The War for History” part nine: from FOIA, a new readout of Vice President Kalonzo Musyoka’s February 2008 meeting with John Negroponte

Sometimes a Freedom of Information Act response from the State Department is “like a box of chocolates”–one of my 2009 requests eventually turned up a readout of a visit on February 7, 2008 by Kalonzo Musyoka, appointed Vice President by Kibaki in January, with John Negroponte, then Condelezza Rice’s Deputy Secretary of State. You may remember that in January Jendayi Frazer, in Kenya as Assistant Secretary of State heading the Africa Bureau, had applied the label of “ethnic cleansing” to the post election violence, a term disowned by “Main State” back in Washington.

The Kalonzo-Negroponte meeting was the same day as U.S. Senate hearings on the Kenyan election, lobbying by ODM with IRI and Negroponte for release of the USAID/IRI exit poll and that evening’s announcement that IRI found the poll “invalid”. (My FOIA did not result in any documents regarding the ODM-Negroponte meeting.)

From my e-mail to Joel Barkan in 2012:

Kalonzo meeting with Negroponte was in Washington on Feb 7, 08–also included [Kenyan Ambassador] Ogego and a staffer from Kenyan embassy. He said power sharing would be a set back for democracy as Kibaki win was “evident” from review at ECK. Would be willing to step aside as VP for Raila, but the Kenyan people would not support it as it would be “undemocratic”. Kalonzo assured that the violence was now under control, but that the U.S. should continue to call it “ethnic cleansing”. According to Salim Lone interview in Standard back in December ’08 he and ODM delegation met with Negroponte that day to push for release of exit poll before meeting with IRI.

Kalonzo Duka

 

“The War for History” part seven: what, specifically, happened with Kenyans’ votes?

I am only aware of one specifically articulated explanation of the “much [that] can happen between the casting of votes and the final tabulation of ballots” as Ambassador Ranneberger described it to Washington on January 2, 2008.  Here it is, from my March 2009 submission to the Inspectors General of the State Department and USAID:

Subsequent to the election, I met privately with a highly placed diplomatic official who told me that the theft of the election by the incumbent administration had been carried out through bribery of Kenyan election officials in the field, in particular the Returning Officers at the constituency level. The source said that these officials received large payments which left them financially secure in return for turning off their cell phones and otherwise making themselves unavailable to allow the vote numbers in the presidential race to be inflated. The source stated that the government he worked for was unable to identify this method of rigging in time to do anything about it because it was carried out “at the last minute”, very shortly before the voting. [Months later a story was published in the Standard regarding the vote fraud which stated that the original plan had been for Kibaki’s re-election to be assured by declaring Langata Constituency for Livondo over Odinga, but that as it became clear that the ODM ticket was carrying large margins from Western and Rift Valley Provinces it was decided that this was not tenable and the approach was switched to inflating the votes from elsewhere.]

This discussion took place in January 2008, during the post election violence, with the exit poll issue “pending”. I found it credible and believed it then, as I do now. Nothing in any of the less fact specific analysis produced by diplomatic or social science sources that I have seen over the years is inconsistent or suggests a contradiction with this information. The Kriegler Commission elected explicitly to stay well away from the type of investigation that would have confronted the Commission with the existence of such facts. I promptly reported the conversation to IRI Washington as I consistently reported such conversations during the election campaign and immediate crisis.

FOIA Update: I timed this series based on information from the USAID FOIA office that I would be getting the complete response to my April 2013 request to them for the documents relating to the exit poll by October 17. They were kind enough to call and let me know that it would be delayed to last week and after checking back they sent me a lengthy heavily lawyered letter and some documents. We have broad areas of disagreement at this point and I have asked them to reconsider their approach in some respects. Pending that, I did finally establish by virtue of the letter from USAID that IRI never filed the final report on the 2005-2007 USAID Kenya polling program, covering the 2005 and 2007 exit polls. Likewise, I have an officially public copy of the IRI January 14, 2008 quarterly report where IRI reported to USAID that the poll had been successfully conducted in spite of the challenges presented.

See Why is IRI’s report on the Kenya 2007 exit poll missing from USAID’s Development Experience Clearinghouse? (FOIA Series Part 13).

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The War for History: Was Kenya’s 2007 election stolen or only “perceived to be” stolen?

As the ICC proceedings play out, understanding the 2008 post election violence and evaluating the role of the parties, including the international actors, requires addressing the conduct of the incumbent Kenyan administration in the election itself.

In my estimation, those of us who observed the election in Nairobi watched as the vote tally was hijacked in a shockingly blunt manner. If this election could not be labelled as stolen, the question has to arise as to whether any election in Africa, as opposed to in Europe, Asia or the Americas, could ever be so labelled, in a context in which diplomatic actors valued “stability” as a key interest. Nonetheless, some who came to Kenya after the election, both from Washington and South Africa, have continued to suggest that the theft of the election may have been only a “perception” from ambiguity, or even asserting that the election was not “rigged” at all.

Because the truth matters in understanding the violence, and in preparing for the future in response to the Chairman of the current IEBC who has labelled the 2007 opposition as mere “sore losers”, I am going to devote much of my attention in the blog this year to articulating “the rest of the story” as I know it, as I continue to wait for release of additional public records under the Freedom of Information Act. I will dedicate these posts to my late friends Dr. Joel Barkan and Dr. Peter Oriare, who worked for a better process.

To begin, let me post here an August 4, 2008 e-mail I sent to Mike McIntire, the investigative reporter for the New York Times who contacted me on July 31, 2008 for an interview about the International Republican Institute exit poll which remained, as of that date, unreleased as allegedly “invalid”:

Mike,

After having some time to reflect on our conversation, I thought it might be useful to emphasize a few points in reference to what we talked about and the documents I have provided:

1. Prof. Joel Barkan at CSIS was our primary (indeed only) Kenya expert on our Election Observation Mission. Professor Barkan was independently identified by IRI to be invited based on his stature as an expert and was also one of those specifically recommended/requested by the Ambassador. Prof. Barkan had headed the Democracy and Governance program for USAID in Kenya during the 1992 elections when IRI conducted a very large USAID-funded observation mission and knew Sheryl Stumbras at USAID and the Ambassador well from his work in Kenya .

2. I got acquainted with Prof. Barkan in the lead up to the observation by e-mail as he offered suggestions, and my discussions with him during and immediately following the election were very influential in forming my own opinions about the nature of the evolving situation with the ECK and the electoral tally and the appropriate handling of the exit poll.

3. Prof. Barkan and I were in agreement that IRI was causing a situation in which it was generating unnecessary controversy and likely embarrassment by refusing to release the poll results on the presidential vote on an ongoing basis.

4. Prof. Barkan was impressed with the methodology of the poll and vouched for the work of Prof. Gibson/UCSD.

5. Again, the decision to involve UCSD pre-dated my arrival to manage the Kenya programs. To my understanding, there was never any question that the point of UCSD’s work was to create data that would be relied on and published–no later than the expiration of IRI’s exclusive right to publicity for the first 180 days. It was also my understanding that IRI was pleased to have Prof. Gibson and UCSD involved because of their strong reputation.

6. With the blessing of IRI Washington, including the press office, I had provided data from the IRI September 2007 public opinion survey to Tom Maliti of the AP in Nairobi for work he was doing on tribal issues as a voting factor. My discussions with Tom and the data were inputs for a story he wrote for the AP that fall linked on the media section on IRI’s website. Tom later asked if IRI would be doing an exit poll as we had done in 2002 and 2005 and I confirmed that we were. It was my understanding that we would have to decide WHEN and in what forum, not IF, the results would be released. [If anyone had asked, I would have been of the opinion that given the way things work in Kenya , we would have to expect the poll results to leak regardless.]

7. The Daily Nation ran a story, I believe the day before the election, in which our pollster, Peter Oriare of Strategic, discussed the fact that Strategic would be conducting an exit poll for IRI. While this was not something that I had authorized or been involved in, I did not consider it to be any type of violation of our relationship or against any wishes that I had conveyed to Strategic.

8. I think it is important to look at the exit poll situation in the context of IRI’s Election Observation Mission Final Report which has now been published as a printed booklet (they FedEx’d me a copy with a cover letter from Lorne in mid-July). The report, which I had the opportunity to provide input on, working with my staff in Nairobi on early drafting and through later editorial input on into April when I was doing follow-up work such as the internal exit poll memo of 4-20 that I sent you, is very explicit that IRI found that “after the polls closed and individual polling stations turned over their results to constituency-level returning centers, the electoral process ceased to be credible”. Likewise, the report states that “To date, there has been no explanation from the ECK as to exactly how or when it determined the final election totals, or how and when that determination was conveyed to President Kibaki to prepare for the inauguration.” The report also notes “. . . the obvious fraud that took place during the tallying of the presidential race . . . ” The Executive Summary states: ” . . . IRI has reason to believe that electoral fraud took place and condemns that fraud. The rigging and falsifying of official documentation constitutes a betrayal of the majority of the Kenyan people who peacefully and patiently waited in long lines to vote on December 27.”

9. It should be recognized that between the time that Kibaki was quickly sworn in and the announcement of the initial agreement at the end of February in the Kofi Annan talks that led to the formation of the GNU in April, there were clear indications that Kibaki and his supporters were using the time to attempt to consolidate power. Initial efforts toward mediation from other African leaders, including Bishop Tutu were dismissed, key cabinet posts were filled unilaterally, etc. Even with Annan talks, the Kibaki position on behalf of the “Government of Kenya” was that it was something less than actual mediation.

10. To this day, there has been nothing done to reform the ECK and there has been no accountability for the misconduct discussed in the IRI EOM report. As best I can tell from what I have read about the hearings conducted around the country by the Kreigler commission, the situation remains one in which partisans of the PNU side argue that there was rigging and misconduct on both sides, that it was as bad in Nyanza by ODM as by PNU in Central and that the ECK decision was appropriate, while partisans of ODM argue that the election was stolen. Because “the ECK is not an independent institution and is subordinate to the executive branch of the Kenyan government” [Finding 1 from the IRI EOM report] the IRI exit poll is the best source of actual disinterested data available under the circumstances.

11. To my understanding, I was charged with managing a foreign assistance program that was intended to be for the benefit of the Kenyan people, funded by USAID, but managed by IRI as an independent NGO. To me, this is something entirely different than something the State Department would do on its own for its own internal purposes–although in that case they would still need to be accountable to the American public and Congress.

12. I think we did a pretty good job with limited resources on the actual election observation. I think we did a pretty good job with the exit poll, too. On balance, my experience as Resident Director of the East Africa office was good, with the exception of the specific situation that arose about the exit poll–just as I had had a positive experience as a volunteer with IRI in Central Asia that led me to be interested in making a bigger commitment to go manage IRI programs in Kenya on leave from my primary career. IRI is a fairly small organization in some ways, but they work all over the world, with programs large and small–ours in Kenya was a small one. As best I know, the program in Kenya had a good reputation and had done good, albeit limited, work in Kenya , over a period of years, due in greatest part to the Kenyans on the local staff. This is not anything like what may have happened in Haiti where the program itself may have gotten out of bounds (and in fact I was told that my successor could not be a member of my local staff because of policy in place as a result of that kind of past experience requiring expatriate leadership in the Country Director position). Whatever happened in Washington regarding the exit poll was a departure from my expectations and experience with IRI otherwise.

13. I am told that things have been “different” in IRI recently by people who have been around the organization for awhile, and it is frequently attributed to a hypersensitivity to the situation where John McCain as the long-time Chairman of the Board has been a leading presidential candidate and then the presumptive Republican nominee. This was something that I did not think about in the context of deciding to take the Kenya position at this particular time (and in the spring of 2007 McCain didn’t look very likely to be the nominee anyway). Another twist in regard to Kenya is Obama’s background there and most recently, the things that are circulating against Obama within the “religious right” regarding some notion that Obama was somehow involved in conspiring in Kenya with Odinga on behalf of Muslims against Christians in the context of the Kenyan election and in the context of the post-election violence–laid against a backdrop in which the policy justification for the State Dept. to support Kibaki would presumably tie into the “extrodinary rendition” controversy and more generally the notion that Kibaki has been an ally of the US in sealing the border with Somalia after the engagement of the Ethipian troops to attempt to restore the TFG and otherwise in anti-terrorism efforts, as well as in regard to other regional issues.

14. Ironically, IRI’s mission in Kenya has to a significant degree focused on working to bring minorities, in particular Muslims [the program is primarily funded through NED as opposed to the specific agreements with USAID for the EOM and the polling], into the mainstream of democratic governance. The most striking difference between the voting reported in the IRI exit poll, and what was reported by the ECK is the opposite outcome in North Eastern Province –by the ECK’s reckoning, Kibaki won in a landslide–in the exit poll, Odinga did. I am no expert on that part of the country, but we did do training for candidates in the province in Garissa, the largest town, and in Mombasa for others in the region, and my expectations would have been much more consistent with the exit poll results than with the ECK tally. Given the requirement that a presidential candidate has to get more than 25% in five of the eight provinces, the NEP vote looms larger than it would based on its limited population in a strict nationwide popular vote.

Ken

Choices and Consequences: Next for Kenyatta’s ICC Defense, October 8 Status Conference [updated]

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?

Solo 7--Kibera

Solo 7–Kibera

Susanne Mueller’s article from the Journal of East African Studies earlier this year, “Kenya and the International Criminal Court (ICC): politics, the election and the law”, perhaps gives the clearest account of how the game has been played so far:

. . . 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!

Ahead of Washington Summit, Setback for Kenya’s Attorney General in pre-trial defense of President Kenyatta at ICC

 

Counting-the original tally

Counting-the original tally; December 27, 2007

“ICC acts tough on Uhuru’s assets, phone records” Daily Nation, July 30.

The International Criminal Court has directed that the Kenyan government be compelled to provide the property and financial records associated with President Uhuru Kenyatta if the government was not ready to fully cooperate.

In a ruling on Tuesday, the judges further unanimously endorsed the prosecution’s revised request that Attorney-General Githu Muigai had contested during the status conference on July 9.

The AG seems to have lost his argument, as the Trial Chamber V (B) ruled that the prosecution’s request was right within the provisions of the Rome Statute of cooperation.

.  .  .  .

The judges further directed the prosecution to “pursue all possible means to get Mr Kenyatta’s telephone records.

. . . .

Of the items that Ms Bensouda had requested she was only able to obtain the details of four the vehicles Mr Kenyatta owned or regularly used between November 1, 2007 and April 1, 2008. These were obtained with the consent of the accused.

In fact, Lands secretary Charity Ngilu, in a letter that was read to the court, said that “doing the best with the resources and time available to us, we have not located any land, title or property registered under the name of Uhuru Muigai Kenyatta.”

. . . .

. . . .

The Chamber also trashed arguments by the AG that the “work of prosecution investigators was being outsourced to the Kenyan government”. The judges, Kuniko Ozaki, Geoffrey Henderson and Robert Fremr, also validated the extensive requests by ICC prosecutors.

“It is a reasonable investigative premise that an accused with access to substantial resources may choose to act through various intermediary entities, as this would in particular, reduce the traceability of transactions intended to further a criminal purpose,” they said.

Githu had dismissed the request by Prosecution Chief Fatou Bensouda as irrelevant to the charges and too broad. The wide-ranging requests, which were made public for the first time late Tuesday seeks disclosure of the President’s records for about three years beginning June 1, 2007 to December 15, 2010.

“Investigations inquiries may not be confined merely to the immediate period of the violence,” the judges ruled. “In the context of certain records, a longer time period may also be justified for comparison purposes where pattern of activity may be significant in revealing unusual communication or transactions.”

This is the second time the ICC Judges are asking the Kenyan authorities to use compulsion to comply with its cooperation obligations to the court. The judges have threatened to refer Kenya to the Assembly of State Parties if it declines to disclose the records.

Already, a separate chamber has issued orders to the govern- ment to compel nine witnesses to testify against Deputy President William Ruto and his co-accused, journalist Joshua Sang. Uhuru’s trial is set to begin on October 7.

. . . .

If you are in Washington for the Africa Summit or otherwise on August 7 you can have dinner with H.E. Kenyatta at the Grand Hyatt from 7-9pm, sponsored by the Corporate Council on Africa, for $200 if you are not a member of the Council, or $100 if your are.  Members (only) may wish to join H.E. Teodoro Obiang of Equitorial Guinea, starting at 6pm that night at the St. Regis.  Perhaps with a good driver you can catch both.  To register follow the links here; the Council is also hosting several less controversial events surrounding the Summit.