Challenges to the constitutional role of the Kenyan Courts by the Executive Branch did not start this week

[Update: see new editorial from the New York Times: “Kenya on the brink again.

And Gathara’s World: “Kenya’s Future Increasingly Looks Like Its Past”;

Kenya has basically regressed 50 years in the last 7 months and the 2010 constitution’s promise of a democratic renewal is fast fading. If extinguished, history suggests Kenyans may be in for decades of brutal and kleptocratic rule. It will be a steep price for the country to pay for not learning from its past.

The role of the Courts in Kenya is under most conspicuous assault with the Kenyatta government flouting orders to allow the main private television networks back on the air, and ignoring orders to release a high profile political detainee.

In fact, the decision of the Supreme Court to rule against the incumbent President to annul his re-election was unprecedented and extraordinary. It has never warranted complacency.

That one Supreme Court ruling was not a bona fide moment of “Mission Accomplished” any more than the winning of the “yes” vote backed by the United States in the 2010 referendum to approve the new constitution was “Mission Accomplished” for “the reform agenda” that we talked about back in those first years of this decade.

Kenyans will remember the beginning of the Obama Administration when Ambassador Ranneberger was a born-again reformer after getting caught out selling Kenyans on accepting the ECK’s alleged “results” as announced (and subsequently disowned) by Samuel Kivuitu in December 2007. As I learned through the Freedom of Information Act later, Ranneberger had informed Washington in his pre-election cables that the Kenyan courts at that time were not credible.

See quotes from Ranneberger’s cable of December 24, 2007 from my post “Lessons from the 2007 Elections and the new FOIA cables–part two“:

There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.

(For my summary of the 2007 election, see The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With US Connivance” in The Elephant from June.)

After those December 30, 2007 announced “results” were questioned by other observers and not accepted we withdrew our pre-mature congratulations to Kibaki and shifted to support “power sharing.” We helped support negotiations that “settled” the violence among the pols and created openings for ODM politicians within Kibaki’s second administration, along with providing for the Truth, Justice and Reconciliation Commission and the revival of the stalled constitutional reform promised voters by NARC in 2002.

After that experience of 2007-08, when the absence of credible independent courts was so sorely felt, the court system was a recognized need for the new constitution.

The new constitution eventually passed in the 2010 referendum against a spirited campaign led by William Ruto created a new Supreme Court and spurred new hope for a cleaner, stronger judiciary that could perhaps stand up to the cartels and politicians and maybe even a president.

But the “reform agenda” held our focus for only so long, and I don’t think we converted many unfaithful politicians. I never got the impression we were too enthused about the TJRC process, but one way or the other we certainly seem to have completely forgotten about that part of the 2008 National Accord since the Uhuruto regime came in power and made it clear that nothing is to come of the (expurgated) gathered evidence of the wrongs of recent decades.

From the “reform agenda” days, which corrupt Kenyan politician ever got prosecuted by the Kenyan authorities based on Ranneberger’s dossiers? Which corrupt institutions were liquidated to benefit the public? Impunity has proved untouchable and, thus corruption has only gotten worse. The new innovation is that if you get caught and pushed out of the Executive Branch you might get lucky enough to be sponsored in a governor’s race. The dossiers pile up and up.

Meanwhile, the notion of an independent judiciary in Kenya is a fledgling work-in-process. Since September 1 signs have been more negative than positive. Starting with the infamous wakora slurs from the President himself against the Judges, culminating with the inability of the Supreme Court to muster a quorum to hear the challenge to the IEBC holding the “fresh election” on October 26 (after the shooting of the Deputy Chief Justice’s driver in her car), there are questions whether September 1 was a “one off” event. Not one the ruling party intends to see metastasize into an inflection point toward reform and away from Kenya’s historical norms under “Kenyatta and Moi’s KANU especially–the “home” of Uhuru Kenyatta and William Ruto together for most of their years.

“THE DEBACLE OF 2007” – my piece in The Elephant on how Kenya’s politics was frozen and an election stolen . . .

THE DEBACLE OF 2007: How Kenyan Politics Was Frozen and an Election Stolen with US Connivance | The Elephant

The Year Ahead in Tanzanian Politics

Commentary in the East African suggests that former prime minister Edward Lowassa is the man to beat in the race to succeed Jakaya Kikwete as president next year.  Lowassa resigned in 2007 over a scandal involving a power generation contract.  (The energy sector has continued to suffer from corruption scandals.)

Mr Lowassa seems to have gathered many supporters who have stuck with him through his troubled career. In 1995, he was among the more than 15 CCM aspirants for the presidency but he was stopped in his tracks by then retired president Julius Nyerere, who found him to have enriched himself rather too fast.

Mr Lowassa was eliminated by Nyerere’s fiat and that contest within the party was eventually won by Benjamin Mkapa (over Kikwete), who also won the election.

It remains to be seen whether the power-plant scandal will be resuscitated to haunt Mr Lowassa’s campaign or whether he will use this campaign to reiterate what he has said in party caucuses — that whatever he had done he had done with the full knowledge of Kikwete and with his approval and/or instructions.

For a deeper look at the state of Tanzania’s ruling party and the potential restructuring of government under a new constitution, see Hanno Bankamp’s piece in Think Africa Press, “CCM’s Identity Crisis: Comebacks, Constitution and Corruption in Tanzania”.

In late news, Tanzania’s Attorney General appealed to members of the Constituent Assembly–assigned to review and revise the latest daft constitution for a referendum in advance of the 2015 election–not to use bribery in the election of their Chairman and Vice Chairman.

 

Sudan Referendum Voting Comes to Successful Conclusion, Results Next Month

A late AFP report in the Sunday Nation on-line gives some indication of the magnitude of secession sentiment at the polls, and turnout has by all accounts been high:

Voters in Southern Sudan opted, overwhelmingly, to create the world’s newest state, partial results posted outside polling stations in Juba showed on Sunday.

There was no way of knowing how representative the results from the city’s larger polling stations were of the vote around Juba, let alone of Southern Sudan as a whole, in the landmark week-long referendum, which ended on Saturday.

The final result, which will determine whether the south breaks away to become the world’s 193rd UN member state in July is not expected before next month.

But loudspeaker trucks criss-crossed Juba urging south Sudanese to turn out en masse for a huge party to celebrate the expected secession.

Southern Sudan President Salva Kiir yesterday joined worshippers at Juba’s Roman Catholic cathedral Mass in praying for the nation-in-waiting.

“We offer a prayer of gratitude for the peaceful voting in the referendum,” the priest told the congregation.

“We present these votes to God who will bring change through His people.”

Outside a polling station set up in memory of veteran rebel leader John Garang, policeman John Gadet read the partial results and proclaimed: “We have done it, we have won, we are free!”

The results posted for the station’s D section recorded 3,066 votes for secession to just 25 for continued union with the north.

Juba University polling station recorded 2,663 votes for independence to 69 for unity. A station set up in a school in the city’s Hay Malakal neighbourhood reported 1,809 votes for secession to just 75 for unity.

The school is almost alone in Juba in still teaching in Arabic, the language of the Khartoum government, as the region has gradually switched to English as its language of instruction.

“Secession. Secession. Secession,” the polling station’s returning officer had repeatedly intoned into the night as he carefully unfolded each ballot paper cast.

The count was conducted by torchlight, creating an almost religious atmosphere in the small classroom.

Each vote was passed for checking to two other polling station staff and shown to domestic and international observers. There were a dozen at Hay Malakal.

The referendum commission’s chairman, Mr Mohammed Ibrahim Khalil, hailed the “most peaceful” election he had ever seen in Sudan.  .  .  .  .

Certainly another hopeful step forward toward fulfilling the 2005 CPA and a milestone for the concept of diplomacy and negotiation to settle conflict.  The Protocol of Machakos of July 2002 recognized the ultimate right of Southern Sudanese self-determination and now the ballots have been cast.

Sudan Updates

Here is the “Sudan Vote Monitor”

Sudan VoteMonitor is a project led by the Sudan Institute for Research and Policy (SIRP) http://www.sudaninstitute.org and Asmaa Society for Development http://asmaasociety.org, in collaboration with other Sudanese civil society organizations, and supported by eMoksha.org, Ushahidi.com and the Standby Taskforce.

The purpose of this initiative is to utilize information and communication technology (ICT) to support the independent monitoring and reporting of the referendum by Civil Society Organizations, the media and the general public. Sudan Vote Monitor will receive reports via text message, email and through its website. All reports will be mapped by our volunteers and posted to our website in real time. We will also produce a daily summary blog post of the reports we have received.

One report for Tuesday voting says the Nairobi Railway Station polling centre is overwhelmed.

The United States’ Africa Center for Strategic Studies has an extensive listing of press coverage of the Southern Sudan voting.

 

Looking to Sudan’s Referendum Sunday

The Financial Times covers a new report from Global Witness that concludes that a new oil revenue sharing agreement is needed to prevent Sudan from returning to war:

The Khartoum government has yet to make good on an agreement on sharing oil wealth with southern Sudan, potentially jeopardising the fragile peace as the south’s population votes on whether to split the country in two, according to a report by Global Witness, the UK-based resource lobbyists.

The sharing of oil income, which accounts for half of state revenues in the north of Sudan and 98 per cent in the south, is among the thorniest issues as predominately Christian southerners prepare to vote on independence on Sunday. The south is widely expected to secede and emerge as Africa’s newest country.

. . . .

“Far less data is being published by the Sudanese government now than it was in 2008 and the first half of 2009, which even then was insufficient to be able to verify the oil revenue sharing,” said the report.

Yesterday, the US hailed the latest overtures from the Bashir government to indicate that it was prepared to allow the rerendum, and succession, to proceed peacefully:

The United States has led pressure on the Khartoum government of President Omar Hassan al-Bashir not to impede the secession vote. Carson said Washington was “extraordinarily pleased” by Bashir’s statements on a trip to the south Sudan capital of Juba on Tuesday that Khartoum was ready to let the south go.

“We hope that the north … will live up to those very promising statements,” Carson said.

Bashir’s visit is the latest sign that the referendum, which many analysts earlier said threatened to spark a return to war between the north and the south, may unfold peacefully.

Key issues including borders, citizenship and the fate of the oil-rich region of Abyei remain to be decided, making the six-month transition period following the secession vote a potentially dangerous period.

U.S. officials are already working on a development plan for an independent south Sudan, which accounts for 70 percent of Sudan’s overall oil production.

The United States is ready to recognize the new government quickly and appoint an ambassador to help lead efforts to improve basic infrastructure, healthcare, and education as well as trade and investment, officials said.

“We anticipate ramping this up very quickly after the referendum,” said Larry Garber, the deputy administrator for Africa at the U.S. Agency for International Development.

A senior U.S. official, speaking on background, denied suggestions the United States was motivated primarily by a interest in south Sudan’s oil, which remains a key sticking point in dealings between Khartoum and Juba and which has been largely off limits to western oil companies thanks to U.S. sanctions imposed on Sudan in 1997.

US officials also expressed confidence that political agreement would be reached on oil revenue and other economic issues and that the status of Abeyei is “longer a potential flashpoint for war,” such that they do not expect further “major violence”.

Here is this week’s roundup “As vote nears, Sudan’s south anticipates independence and problems” from Jeffrey Fleishman in the Los Angeles Times. And here is Rebecca Hamilton’s “Sudan Dispatch” in The New Republic.

China to send observers to Sudan Referendum–what will they look for? [Updated Jan. 6]

The link to the Reuters report from Beijing is here.

China will send observers to Sudan when the south holds an independence referendum on January 9, the Chinese Foreign Ministry said on Tuesday.

“At the invitation of both the north and the south, China will send observers to participate in the referendum,” Foreign Ministry spokesman Hong Lei told reporters at a regular news conference.

“China is willing, together with the international community, to continue to play a proactive and constructive role for the sake of Sudan’s peace and stability,” Hong said.

Hmm. Will these be people who have observed an election before, much less participated in one? If China is serious about peace and stability within the parameters of a democratic process then great and welcome to the community, but if they are just protecting their own interests irrespective then what are they adding?

This is surely a clear example of a diplomatic observation rather than an assistance effort–no indication that China has an interest in improving democratic elections abroad.

Radio France International has an interesting take on the Chinese diplomatic strategy:

Beshir’s more reconciliatory tone is however a diplomatic advantage for China, which is a long-time ally of Beshir and a major investor in the country’s oil industry, which is mainly based in the south.

“China is working very hard to in effect play both sides of the border,” says David Shinn, the former deputy chief of mission at the US embassy in Khartoum. “It wants to maintain its very close relationship with the Beshir government and it wants to maintain as close a tie as possible to the southerners if they secede.”

China has a consulate in Juba and has been providing some assistance to southerners over the last year, but Shinn says it will still have to work hard to create a good relationship with the south, should it become independent.

“They certainly will have an uphill climb in that they are well known to have been very strong military backers of the northern government and those feelings will not disappear quickly,” says Shinn. “On the other hand, the Chinese have shown great propensity over the years to be able to make the switch to the new rulers in town”.

Chinese financial resources will give it an advantage, especially as it is almost alone in having a state sector that is willing to make investments. The Chinese government also backs several banks in Africa, which able to provide low interest loans fast.

Shinn says China has enough invested in the north to want to maintain a good relationship with the north even though most of Sudan’s resources come from the south. Beshir’s diplomatic approach has given China a chance to work with the south without upsetting the Khartoum government.

“Who knows, behind the scenes maybe China has even been encouraging that,” says Shinn.

 

IRIN Africa | SUDAN: What they’re saying about the referendum

IRIN Africa | SUDAN: What they’re saying about the referendum The UN humanitarian news service has a run down of links to major recent reports relating to Sunday’s referendum from the International Crisis Group, the Small Arms Survey, the Enough Project, the US Institute for Peace and the AU High-level Implementation Panel.

Sudan referendum voter registation begins Monday amid complaints by registrar

The head of Sudan’s voter registation effort blasted the Western donors for funding third parties to work in support of the registation effort for the referendum rather than fund the official agency receiving funds from the Northern/National and Southern governments, reports Reuters.

Sudan Update

Major State Department briefing today with Special Envoy Gration, Assistant Secretary Carson and Samantha Power from NSC on Sudan diplomacy.
Interesting reference to Kenya leadership: “Regional leaders have a central role in the implementation of the CPA. The U.S. has been in close contact with Uganda’s Museveni, Ethiopia’s Zenawi, Kenya’s Odinga, and chair of the Pan-African Union Jean Ping.”

Maggie Fick writes at Foreign Policy about the risk of internal fighting within the South even if the referendum succeeds and things are stable between North and South. This is well beyond any claimed expertise on my part, but I have a hard time imagining that she isn’t completely right–and I would certainly hope that serious consideration and planning has been going on within the U.S. foreign policy and security establishment on this for quite some time. The “gold rush” mentality coming from foreign investors and even NGOs–will certainly be a factor. Remember that Rolling Stone article about the Americans and warlords and mass tracts of farmland just south of the North/South border?