Kenya Election “must read” from Maina Kiai: Of suspect opinion polls and a false image of an efficient IEBC (Daily Nation)

“Of suspect opinion polls and a false image of an efficient IEBC”

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:

. . . .
IEBC’S CREDIBILITY

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.

ELECTORAL MALPRACTICE

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

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.

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!

134 days after election, Kenya’s IEBC fails to produce election results in Parliament

Daily Nation, July 16, “IEBC fails to submit final poll tally” :

The electoral commission failed to furnish Parliament with the final results of the March 4 General Election Tuesday amid claims that some commissioners refused to sign the report.

 

The commission was expected to submit the final tally to the Justice and Legal Affairs committee at a meeting scheduled with the team at Parliament Buildings Tuesday. The committee was to relay the report to Parliament.

 

Independent Electoral and Boundaries Commission chairman Issack Hassan and chief executive James Oswago appeared before the committee but were turned away after the chairman indicated that the tally was not ready for submission as per the request from Parliament. . . .

Here is the Standard story.

 

Kenyan Constitution and the Rule of Law

Most people that I have talked to expect the new Kenyan constitution to pass in the upcoming August referendum in spite of opposition from several church groups and politicians. This is also the view of the US-based consultancy STRATFOR in a new report on Kenya. The Synovate poll taken in late April showed a heavy balance in favor of a “Yes” vote, including among those who had disagreements with some specific points in the draft.

Looking ahead, the question may become, how much will the changes in the law really matter?

The Brookings Institution published an interesting study by Daniel Kaufmann  earlier this year criticizing the tendency to focus too much on the de jure rules of law rather than the de facto workings experienced in practice, citing the current situations in Kenya and the U.S. as examples:

First, consider Kenya in 2007. The main aid donors, led by the World Bank and the United Kingdom’s aid agency, DfID, tended to praise the governance reform efforts of the Kenyan authorities, including those on legal initiatives and anti-corruption.[1] Subsequently, in the run-up to the presidential elections, these top donors, also including the United States, flooded the Kenyan government with funds. Kenya’s government was even awarded a special international prize recognizing its good governance efforts.[2]

Elections were held a few short days after the last 2007 World Bank press release in Kenya, which announced approval of funding yet another project for the government.[3] The elections were widely regarded by external organizations, such as the EU, and by many Kenyans[4] as rigged, in what was the culmination of years of systemic political corruption that infiltrated key legal and judicial institutions. Civil strife erupted and the full extent of the breakdown of law and order was exposed at a dire cost—thousands of lives were lost and vast socio-economic damages were inflicted.[5] Yet, the main aid donors appeared to be shocked that such corruption, electoral mismanagement, and turmoil could take place in Kenya.[6]

Around the same time and half the globe away, some rule-of-law institutions were being quietly undermined inside the world’s superpower: the United States. In April 2004, amidst euphoric financial sector growth, a meeting was held in the basement of the Securities and Exchange Commission (SEC).[7] The top executives of the main Wall Street investment banks gathered to weigh in on proposed SEC regulations that would relax restrictions on their investment houses.[8] A scant 55 minutes later, the investment bankers emerged with SEC approval; the new regulations exempted the investment groups from the leverage restrictions that apply to commercial banks, allowing the banks to massively expand their debt.[9]

In return for the green light to an enormous expansion of indebtedness, the investment banks agreed that the SEC would have more oversight over them, for which a special unit would be formed.[10] In practice, the oversight did not take place. In fact, the head of the SEC never created or staffed any such oversight unit.[11] The resulting financial debacle that followed is now well known. What is insufficiently appreciated is the fact that various manifestations of “soft” and “hard” forms of regulatory and legal capture by the elite financials were a factor leading to the crisis.[12]

There are many salutary features in the draft constitution, on paper, but the real question will be making them work in practice. Rule of law will crucially depend on reform of the police, consistently rated as among Kenya’s most corrupt institutions, as well as better access and more effectiveness in the court system.

The outstanding issue of prosecutions for post-election violence is a good immediate test. ICC prosecutor Luis Moreno-Ocampo is in Kenya now, and is said to have informed the government that he will seek to bring two cases against three key individuals each, in the Hague in the September-October timeframe. The government continues to pledge cooperation, but continues not to take specific steps to effectuate the law passed by Parliament to provide for witness protection.