Kenya, after three problematic general elections (2007, 2013, 2017), might finally be showing some initial stirrings of organic action to start to address fraud within the Election Commission. The Independent Electoral and Boundaries Commission has announced today the termination of Ezra Chiloba, Chief Election Officer, after a long suspension.
The last two elections were plagued by technology problems, with the 2017 vote annulled by the Supreme Court. The donors, including USAID which directly funded failed purchases in 2013, and funded a major embedded role with the IEBC for IFES throughout these years, have remained conspicuously mute on reforms and corruption issues involving the Electoral Commissions.
In the past, after opposition protests, the Commissioners from the 2007 and 2013 elections were given lucrative buyouts to pave the way for a new slate, and impunity for bribery and procurement fraud issues was the informal consensus policy among the Kenyan politicians and the Western donors supporting the election process.
After the buyout of the Commission led by Issack Hassan which had failings in the 2013 vote, Chief Election Officer Chiloba was carried over under the new Commission on through the 2017 vote. Since 2017 we have now seen three Commissioners resign in addition to Commissioner Akombe who fled country during the tensions following the Supreme Court’s annulment of the August presidential vote. The remaining Commissioners have now acted to fire Chiloba after internal audits and a report by Kenya’s Auditor General raised “charges . . . on major procurements.”
See today’s announcement:
The next step is to release to the public the audit reports indicating “charges” and refer the matters for legal proceedings.
In the meantime, several more months have gone by without any further release from the USAID FOIA office on my 2015 request for the documents from their support of the IEBC through IFES for the 2013 vote.
Kiai has taken note of a transparently fake “NGO” that has been playing in this years’ campaign space to sell in advance whatever results are going to be announced. As you would expect in Kenya this “group” does not even seriously try to be subtle enough to be plausible to sophisticated observers, but gets picked up in the Kenyan media in pari passu with bona five organizations without scrutiny (at least until Kiai’s column).
Let’s hope international reporters who “fly in” for Kenya’s election do their homework this time.
Here is Kiai on where things stand as time winds down for election preparation:
. . . .
Something smells really fishy here, verging on being “fake news” meant to influence us with false information.
We clearly have not seen the end of that and we should all try to verify whatever is presented in the media.
And we have been here before. In the lead-up to the 2013 elections, the IEBC was polling as one of the top two institutions that Kenyans had confidence in, together with the Supreme Court, at the time led by Chief Justice Willy Mutunga.
But with all the shenanigans around procurement, gadget malfunctions, “server crashes” and a return to the discredited manual system for voter identification, tallying and transmission of results, the IEBC quickly lost its credibility.
The “chicken-gate” scandals involving the then chairman of the IEBC and the CEO further damaged the IEBC, even if the politicised Ethics and Anti-Corruption Commission eventually “cleared” the chairman.
I am not holding my breath that this IEBC will deliver credible, free and fair elections with the way it is operating.
It blames the courts for its unpreparedness, but this is more than about competence.
Like 2013, there is an emerging sense of willfulness in the way it is making decisions, short-cutting steps that could mitigate some of the emerging worries.
Incredibly, many of the key staff members who were involved in the previous mangled elections are still in place!
I am baffled that despite the court ruling that declares results final in the polling stations, the IEBC has not yet announced plans to ensure that returning and presiding officers are not only recruited transparently, but are based outside their home areas, to reduce ballot stuffing, especially given that we will probably use the easy-to-manipulate manual identification.
Now more than ever, these officials on the ground will determine the veracity of the election.
Rigging of elections has three basic strands.
The first is ballot stuffing, which is done at the polling stations by all sides (which then effectively balances out); the second is the changes by returning officers of results from polling stations under the guise of tallying, verifying and confirming the votes; and the third and most significant, is the massaging of figures done at the National Tallying Centre in Nairobi.
Note that the Krieglar report refused to go into the rigging at the National Tallying Centre, claiming that the evidence of ballot stuffing from both sides was enough to conclude that the 2007 election was irretrievably flawed.
Privately, Judge Krieglar was afraid that investigating the tallying at the KICC would present a different result from that announced and he did not want to be held responsible for more tensions when different results emerged.
OFFICIALS WITH INTEGRITY
Second, the argument that the National Tallying Centre should be retained to “correct” anomalies from the ground is facile and disingenuous.
It falsely assumes that the commissioners and senior staff are the only ones competent and with integrity, and should be trusted with “rectifying” obvious mistakes like more votes than voters registered.
It is the responsibility of the IEBC to recruit competent persons of integrity at all levels, rather than hire people whose work would need “rectification”.
Every time there is “rectification”, we simply get more rigging.
It is not harder to count the votes in Kenya than in other countries . . . it is just that so much goes in to obscuring those counts, done only at each polling station, so that freedom of action remains at “the center” in Nairobi.
From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:
“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. IFES will ensure this system is fully installed, tested and operational for the 2012 election. Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.”
[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]
The Agreement is heavily redacted and divided into four files for length;
Since I have been fussing periodically about how long it has been taking to get any documents released from my October 2015 FOIA request to USAID for documents about our funding for the IEBC in 2013 and related, I need to thank the USAID FOIA Office for getting this initial release out (and hope for the rest to be in time to be usable for process improvement for the impending next election).
The Court did not give rulings on the admission of evidence such as the videotapes presented by AfriCOG’s counsel of results being announced at the County level that differed substantially from those announced by the IEBC at its national tally centre in Nairobi, or otherwise grapple with any specifics of reported anomalies, including those among the sample of 22 polling stations that were to be re-tallied. Nor did it address the fact that its order to review all 33,000 Forms 34 and the Forms 36 from all constituencies was only slightly over half completed.
The Court declined to impose legal consequences in terms of the announced election outcome from the failure of the IEBC’s technology, but significantly did find that the main cause of the failures of the electronic voter identification system and the electronic results transmission system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”
According to the Independent Review (“Kreigler”) Commission, in 2007 USAID through IFES paid for the purchase of computers for the planned results transmission system for the ECK. Very late before the vote, according to the Commission, the ECK voted to shelve the system and not use it. None of the actors, ECK, IFES, USAID nor the US Ambassador publicly disclosed the “shelving” decision. The Ambassador gave his subsequent pre-election Nairobi interview published as “Ambassador expects free and fair election” nonetheless.
The Kreigler Commission investigating sought the minutes of the ECK’s action; the ECK refused to release the minutes and the Commission went ahead and submitted its report to President Kibaki and disbanded, noting the missing evidence. [Again, I was told by a diplomat involved in January 2008 that key Returning Officers at the last minute were bribed to turn off their cell phones and “go missing” so that vote tallies could then be “marked upwards” to give Kibaki the necessary margin at the national level; likewise, we learned from the Daily Nation that Wikileaks published cables showing that the U.S. issued “visa bans” against three ECK members based on evidence of alleged bribery. The late decision by the ECK to shelve the U.S. purchased computer system would thus have been critical to allowing the bribery scheme to be effectuated. See “The War for History part seven: What specifically happened to Kenyan’s votes?“.]
In 2007 we obviously knew that the system had been shelved and kept quiet about it. In 2013 we let on that we expected the system to work–even was in the process of working–until it was shut down early after the vote. That is hard to understand given that IFES was to “ensure this system was fully installed, tested and operational” and make the necessary purchases. I will hope that the rest of the requested documents will clarify all this and be released as soon as possible to benefit the planning for the upcoming 2017 election.
The technology problems will be all too familiar, of course, to Kenyans and others who were involved or closely observed the 2007 and 2013 elections, or were involved in writing up any of the many commission papers, evaluation reports, etc. associated with those misadventures.
Sadly, it may be that the die has already been cast for this year in that the IEBC Commissioners were not replaced until too late to have the requisite time on the job to adequately prepare for the election (a key recommendation from the 2008 “Kreigler Commission”). For the most part they have inherited the work of their predecessors and the staff they hired who made crucial decisions like planning a huge expansion of the number of polling places, while failing to address the corruption in the failed technology procurements or make adequate progress on replacements.
With the new Commissioners taking office, officials from President Kenyatta’s party launched a public attack on the U.S. election assistance effort which is being run by IFES, and singling out long time IFES country director and USAID Chief of Party Mike Yard, who seems to have been the one person with both the most longevity and the best reputation involved in process. And then there were visa problems and other Government of Kenya directed disruptions. I am sure its a coincidence [ha!] but Mr. Yard took on a new challenge earlier this year as Country Director for Libya. Thus, a new director arriving less than five months before the scheduled vote. (I arrived in Kenya roughly six months before the 2007 election and am still learning on a continuing basis things no one told me that I should have known about that election.)
Realistically, the job looks impossible as structured, even if there had been adequate preparation time because of the conflicts of interest that USAID has built into the the role. Compounding the problems from 2007 and 2013, USAID chose to select one entity to provide the inside technical support for the IEBC as per the IFES role since 2001 with the ECK/IIEC/IEBC, to provide voter education and also to lead election observation. Thus IFES is wearing both “insider” and “outsider” hats at the same time, when the contradictory responsibilities of working with and observing the IEBC are both hugely challenging and vitally important.
One other factor is that IFES does have some separate funding for 2014-18 work from the Canadian International Development Agency this time.
No incumbent president has been recognized by a Kenyan election management body as having lost a re-election bid. Presumably the immediate foreign policy priorities of the United States in Kenya in August will be weighted to the stability of our long time “partner” Kenya. As the State Department continues the process of consolidation of control of USAID as we have seen over the previous U.S. administrations in moving from the 2007 to 2013 now to 2017 election, it will be that much harder to for people handling democracy assistance at USAID to stand firm for the long term interests, and statutory and legal priority of the U.S. to support democracy in the face of competing claims from the diplomatic and defense constituencies within our government which will presumably have incentives to placate the incumbent.
Election observation has always been controversial in Kenya. In the first multi-party presidential election in 1992, Ambassador Smith Hempstone, according to his memoir, recommended having NDI observe the election, anticipating an incoming Clinton administration. President Moi, who used the Republican consulting firm Black, Manafort and Stone, refused to entertain NDI, writes Hempstone, but agreed to IRI. In 1997 and 2002, the observation agreement went to the Carter Center, then to IRI in 2007 (that year USAID did not want to do an observation, as I have written, but Ambassador Ranneberger instigated having IRI observe), then back to the Carter Center in 2013. Observers inevitably get criticized for being too critical or too lenient towards the Kenyan process, which has always been messy.
In my year 2007, the EU and the domestic donor-funded observers stood up initially to the ECK’s obvious irregularities, while IRI was initially neutered. Eventually IRI released both its exit poll indicating an opposition win (August 2008) and a highly critical final report (July 2008).
In both those 2007 and 2013 elections, as in 2002, IFES worked inside the IEBC to provide technical support and did not have an “observation” role. Bill Sweeney , the IFES President, later testified to Congress that the 2013 election was a great success from the IFES standpoint because Kenya “did not burn”. The terminology of the Kenyan constitution for a successful election is “free and fair” as opposed to “did not burn”. Maybe I am just too much of a lawyer in how I look at these things, but I do not think we should have USAID help underwrite elections to a “do not burn” rather than “free and fair” standard to the the tune of $25M when people are literally starving to death in the neighborhood and aid budgets are being cut.
I do not want Kenya to burn, and I hope and pray that this year’s election is less violent than 1992, 1997 or 2007–and even 2013 when “only” 400-500 people were killed in politically driven violence in the pre-election months and only a few protesters were killed by police after the vote. In general terms the reason that people die over elections in Kenya is because they are governed by killers, not because Kenyans aspire to actually have their votes counted honestly and openly.
Small things from the Long War. It’s well and good for the Navy to buy local to feed our sailors to support the Djibouti economy. And not sending an observation mission to Djibouti’s most recent election was also progress. (Of course you will remember IGAD sent its delegation headed by Issac Hassan, who is now in the process of being bought out of his position as chair of Kenya’s IIEC/IEBC which we have supported, but we had the integrity to stay off this one. See my post here.)
The bakery in this picture is actually from Addis Ababa under the “developmental state” regime in 2007. We would overnight in Addis on our way from Nairobi to Hargeisa. With no democracy to be promoted I could just visit and take pictures, although shortly before I visited this bakery I was stopped by a concerned stranger with the warning that “they will kill you” for taking pictures. Fortunately they didn’t.