Just waiting on a FOIA–could legal action be pursued in the U.S. for Kenya IEBC procurement corruption?

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More than ten months after requesting documents from USAID on one part of our Kenya IEBC support program for the 2013 election I have been unable to get anything more than an assurance that my request “is being handled” for interim releases as soon as “possible” although USAID’s FOIA office got a CD of materials from the Nairobi mission at least six months ago.

Meanwhile, Secretary Kerry in Nairobi reiterated that my government intends to spend a new $25M on efforts for the election scheduled for a year from now, but supports the agreement between CORD and Jubilee to “buy out” the existing IEBC Commissioners (with at least informal immunity). I noted earlier this month that the Request For Proposals for a $20M election support effort released last December had been pulled off the internet without explanation.

Here is my FOIA request to USAID from last fall:

This FOIA request relates to Kenya Election and Political Process Strengthening Cooperative Agreement Number 623­LA­11­00007, under Leader Cooperative Agreement No. DFD­A­00­08­00350­00, with the International Foundation for Electoral Systems (IFES).

I am requesting the following:

1) All reports filed by IFES with USAID regarding the above referenced Cooperative Agreement during the years 2011 through 2013.

2) All correspondence between the IFES and USAID relating to the above referenced Cooperative Agreement during the years 2011 through 2013.

3) The complete contract or cooperative agreement administration files of USAID relating to the above referenced cooperative agreement.

4) All other documents or records, including e­mails or other electronic communications, created by, or received by, USAID relating to procurements under the above referenced cooperative agreement, from the date of the agreement to the present.

5) All other documents or records, including e­mails or other electronic communications, created by, or received by, USAID reflecting, referring to or constituting communications between USAID and Kenya’s Independent Electoral and Boundaries Commission, including its members, officers, employees or agents, from January 1, 2011 to the present.

6) All documents related to Smith & Ouzman, Ltd. relating to business of that firm in Africa from 2010 to present.

The missing USAID news: “Kenya’s President Lost Disputed Election, Poll Shows”–the War for History, part 16

IRI Poll Release Press ConferenceFor some reason the USAID Frontlines newsletter for August 2008 has gone missing from the USAID online archives, breaking my link from other posts and pages.  Fortunately, I downloaded a file years ago.  Here is the key news item:

Kenya’s President Lost Disputed Election,  Poll Show
NAIROBI, Kenya—An exit poll carried out with a grant from USAID in Kenya after elections six months ago that unleashed a wave of political and ethic killings, disclosed that the wrong candidate was declared the winner.
President Mwai Kibaki, whom official results credited with a two-point margin of victory in the December vote, finished nearly 6 points behind in the exit poll, which was released in July by researchers from the University of California, San Diego.
Opposition leader Raila Odinga scored “a clear win outside the margin of error” according to surveys of voters as they left polling places
on Election Day, the poll’s author said.
The exit poll was first reported on by the McClatchy news agency. It was financed by the International Republican Institute, a nonpartisan democracy-building organization, with a grant from USAID.
Amid post-election violence, IRI decided not to release the poll. But the poll’s authors and the former head of the institute’s program in Kenya stand by the research, which the authors presented July 8 in Washington at the Center for Strategic and International Studies. In the exit poll, Odinga had 46.07 percent of the vote and Kibaki had 40.17 percent. (emphasis added)

Note that in this 2008 USAID publication  there was no assertion that the poll was withheld due to being “invalid” or questionable in some fashion, as sometimes asserted by IRI, nor that it was a “training exercise” and  “never intended to be released” as claimed by Ambassador Ranneberger in a webchat in March 2008 and in talking points prepared by the State Department’s Africa Bureau in response to inquiries from the McClatchy newspapers in early 2008 and used again after publication of the New York Times investigation in early 2009.  Rather simply that a decision was made not to release the poll “amid post-election violence”. [Ed. note: For details on the State Department Africa Bureau Talking Points for media communications regarding the exit poll, see Africa Bureau under Frazer coordinated “recharacterization” of 2007 Kenya Exit Poll showing Odinga win (New Documents-FOIA Series No. 12)]

Meanwhile, now in 2016, Kibaki’s successor is rolling out his re-election campaign in the form of a Jubilee Party to be assembled from the dissolution of Kenyatta’s TNA, Ruto’s URP and various other party vehicles. All this is being done through ceremonial meeting/events at State House, serving notice that the legal restrictions on the use of public resources for campaigns found in the Elections Act of 2011 are no impediment where His Excellency the President is concerned.

Even Kibaki used private venues, rather than State House, to form and announce his Party of National Unity for his 2007 re-election.

No public word that USAID or the State Department are reconsidering the underwriting of this latest presidential vote. USAID published an RFP for a $20M election assistance program last December although it was also removed from the government’s websites after it was due to be awarded.

Secretary Kerry will be coming to Nairobi later this month, perhaps reprising Secretary Clinton’s summer 2012 visit ahead of the 2013 election.

It took a village to get Secretary Clinton’s public records–but the lack of a culture of legal compliance within the State Dept saddens me 

The release this week of the report by the Office of the Inspector General for the State Department regarding Email Records Management at the Office of the Secretary debunks for anyone who did not have enough background to know better the various arguments that Secretary Clinton’s use of a private email system from a server in her home in New York was remotely plausibly compliant with public records requirements applicable to all public business in the State Department.

As a State Department public records requestor for the material involving my work in Kenya, it is certainly dispiriting to see how these obligations have been addressed.

Kudos to the Office of the Inspector General of the State Department for solid and challenging work in vindicating the public interest by investigating and reporting to the rest of our government and the public regarding failures of senior leadership at the State Department to adhere to applicable standards for public records.  Thanks to private litigants, the courts and the OIG, we can say that in some senses “the system worked” and we are getting much of the information that we are entitled to as Americans about the work being done in our name.

For years the crucial State OIG sat vacant, and when I submitted my “hotline” complaint to the controversial Acting OIG early in the Obama Administration about issues related to interference with democracy assistance agreements to support the failed Kenyan election, the complaint was shunted to the State Department’s Africa Bureau itself without any protection for me as a reporting source or any apparent investigation.  So this new investigation and report shows progress.

Now, however, there needs to be some serious soul searching within the State Department as to why so many people ducked out, took a pass or actively facilitated an “opt out” by “the corner office” of clear requirements regarding the records of how the public’s business was being conducted.

And why it has taken so long, so much public expense, and so much outside legal intervention to get to the public basic facts of how the State Department operated throughout the last administration.

The State Department has been America’s most prestigious employer.  This is embarassing and needs to be fixed.

It is all made worse, not better, by the fact that many people like me expect to have no competitive morally acceptable alternative choice in the next American presidential race than the very same politician who put us all through all of this as Secretary of State.

Secretary Clinton, what is the problem, here?  Are your friends, advisors, subordinates afraid for some reason to help you understand and navigate your basic legal responsibilities in conducting public business?  If so, why?  Is that not something you can fix if you make it a priority?  Is it not something that is dangerous not to fix if you are to be president?

It astounds me that you seem to have thought somehow that this whole alternative record keeping system would remain secret.  That was surely magical thinking.  Aside from the law and compliance issues, how could the brilliant, accomplished and loyal people around you fail to burst that bubble?

Your country, and our democratic friends, need you to “straighten up and fly right.”

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John Wesley

Kenya: Joint Statement from several Western diplomats

From: Nairobi, US Embassy Press Office
Sent: Tuesday, May 24, 2016 4:59 PM

JOINT STATEMENT

Heads of Mission on Recent Violent Demonstrations in Kenya

May 24, 2016

We are deeply concerned by the escalation of violence during the demonstrations in Kenyan cities on 23 May around the future of the Independent Electoral and Boundaries Commission (IEBC). The deaths and injuries of Kenyan citizens were tragic and unnecessary. We urge the Government of Kenya to investigate the actions of the security services and to hold accountable anyone responsible for the use of excessive force. We call on all demonstrators to act peacefully.

Violence will not resolve the issues regarding the future of the IEBC or ensure the 2017 elections are free and credible. We strongly urge all Kenyans to come together to de-escalate the situation and to resolve their differences, taking every opportunity for inclusive dialogue. Kenyans should talk, and any compromise must be implemented in accord with Kenya’s Constitution and the rule of law. As partners, we stand ready to support such a dialogue in any way that is useful.

# # #

This statement has been issued by the following Heads of Mission in Kenya:

Robert F. Godec
Ambassador of the United States

Nic Hailey
High Commissioner for the United Kingdom

Jutta Frasch
Ambassador of Germany

David Angell
High Commissioner for Canada

Johan Borgstam
Ambassador of Sweden

Mette Knudsen
Ambassador of Denmark

Victor C. Rønneberg
Ambassador of Norway

John Feakes
High Commissioner for Australia

Frans Makken
Ambassador of the Netherlands

Rémi Marechaux
Ambassador of France

Roxane de Bilderling
Ambassador of Belgium

Stefano A. Dejak
Ambassador of the European Union

(Updated) U.S. and IGAD statements on #Djibouti election

imageIn the previous Djibouti election in 2011 the incumbent administration kicked out the US-funded Democracy International Election Observation Mission–this time we didn’t go, nor offer substantive criticism of Guellah’s latest re-election:

“The United States commends the Djiboutian people for peacefully exercising their right to vote during their country’s April 8 presidential election.

While elections are an integral component of all democratic societies, democracy is also built on the foundation of rule of law, civil liberties, and open political discourse between all stakeholders. We encourage the Government of Djibouti to support the freedoms of peaceful assembly, association, and expression for all of Djibouti’s citizens.

The United States has a strong partnership with Djibouti. We look forward to advancing our shared interests and helping Djiboutians build a more prosperous, secure, and democratic future. We take note of the reports released by the Intergovernmental Authority on Development, the African Union, and others and the recommendations by the African Union on improving future electoral processes in Djibouti. We hope to work with the Government of Djibouti to advance those recommendations.”

In addition to hosting AFRICOM’s Combined Joint Task Force-Horn of Africa (CJTF-HOA) and Japanese military, Djibouti has also agreed to what appears to be a significantly larger Chinese People’s Liberation Army Navy (PLAN) base.  Obviously we can’t buy love, but perhaps Djibouti can buy quiet on democratization pressures?

See “Jostling for Djibouti” from Katrina Manson at the Financial Times. Outstanding journalism, setting the scene in the country before the vote.

From RFI’s Clea Broadhurst following the vote:

Ahead of Friday’s vote, opposition groups had complained of curbs on freedom of assembly while rights groups accused the government of political repression and crackdowns on basic freedoms.

Djibouti has been on the radar of human rights groups for some time, with allegations of a pattern of political repression and lack of freedom of expression. Just days before Friday’s election, three BBC journalists were detained and expelled from the country without explanation.

“Everybody knew that Ismaïl Omar Guelleh would be the winner of those elections. It’s important to understand the real opposition did boycott those elections because there was absolutely no guarantee for a fair, transparent and democratic election,” Dimitri Verdonck, the president of the association Culture and Progress working on human rights issues in Djibouti, told RFI.

“It’s important to know also that the international community is looking at these elections with a very high level of caution. The European Union did not send any observers in Djibouti, same goes for the United States and other partners of Djibouti – the only ones who did accept to be there during the elections are the Arab League and some members of the African Union. But nobody wants to give any credibility to these elections.”

Well, not no one exactly:  the dependable and indefatigable Issack Hassan, chair of Kenya’s IEBC, headed up an IGAD observation delegation. “The overall objective of the Mission was to observe the Presidential Elections held on April l 8th in Djibouti in the efforts by this country to conduct free, fair, and credible elections by providing positive and constructive feedback.”

Here is the Conclusion from the IGAD EOM Preliminary Statement:

CONCLUSION
IGAD Election Observer Mission was limited to three days observation only which entailed two days of pre-election assessment and the observation of the voting day on the poll opening, polling, poll closing and vote, counting and tallying processes. Therefore, the Mission will not be in a position to provide complete and comprehensive conclusions on the entire election process. However based on what it has been able to observe, the Mission preliminary conclusion is that the 2016 Presidential election was conducted in a transparent, peaceful, and orderly manner and in accordance with the Constitution and the laws governing the Republic of Djibouti.

IGAD wishes to take this opportunity to express its gratitude to Ministry of Foreign Affairs and the International Cooperation and the Ministry of Interior of the Republic of Djibouti, the Constitutional Council, the National Independent Electoral Commission (CENI) as well as the Media for the assistance rendered to IGAD to make the Observer Mission task easy.

Finally, the Observer Mission would like to congratulate the people of the Republic of Djibouti for the peaceful and orderly manner in which they conducted the election and wish them peace, continuous progress and prosperity.

Done on 9th April 2016, Kempinski Palace Hotel,
Djibouti, Republic of Djibouti

When Amb. Gration was purged in mid-2012, the Secretary of State had been using her private email system for 3 1/2 years

This was my point from the last post.  I was prompted by the latest news stories in the international press about Secretary Clinton’s emails containing top secret material not being released.

Obviously, in releasing a report from the Acting Inspector General focused on criticizing Ambassador Gration’s email security and public records compliance in mid-2012 coinciding with the Ambassador’s resignation, the State Department was surely “blowing smoke”.  Plenty of people involved in this, aside from the Secretary of State and the President, must have known that the Secretary herself was using an insecure, “off the public record” system for her own official emails.

Did the Acting Inspector General know? If not, shouldn’t someone have told him?

I don’t know Ambassador Gration and was not in Kenya during his tenure and have no opinions or personal knowledge about the backstory (but will note that someone at the State Department bothered to mention a day ahead of time that the OIG’s report was coming out and the Ambassador was leaving).  Likewise, I am uncommitted and unaffiliated regarding the U.S. presidential race.  My interest here is that this is a foreign policy and public records issue regarding Kenya.

See: Hillary Clinton, Scott Gration and “public-private” email at the State Department

Top new posts of 2015

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

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

“The War for History” part ten: What was going on in the State Department on Kenya’s failed election, recognizing change at IRI–and how the 2007 exit poll controversy turned into a boon for IRI in Kenya

“Look, no hands” — Outgoing U.S. Ambassador to Uganda declines to offer support for electoral reforms (updated)

In an interview in today’s edition of Uganda’s state owned New Vision, retiring U.S. Ambassador Scott DeLisi addressed the current Ugandan campaign for the 2016 elections. In response to a question about civil society concerns about narrowing of the democratic space in Uganda, DeLisi declined to weigh in and went so far as to volunteer a position on behalf of the United States that he would leave the issue of electoral reforms for Ugandans to “discuss among themselves”.  Translated from diplospeak, discussion among Ugandans here means that prospective voters can mutter, murmur or swear and Museveni can decide as he will without consequence.

In his most recent re-election in 2011, Museveni stiffed the United States by keeping control of the appointment of Uganda’s electoral commission. See “High level U.S. delegation carries requests to Museveni on fair elections and Iran sanctions” and “Plenty of reason to be concerned about Uganda election” along with linked related posts. This time, the Obama Administration, fresh off dancing with Kenyatta literally and with Hailemariam figuratively, seems to have given up on any aspiration for pro-reform influence well in advance.

From the interview:

You have always asserted that the US mission will not get entangled in local politics. But as an ambassador, what advice would you give to players in the impending elections?

We never said we will not get involved in politics. Just as citizens of this country, we have invested in this country. Do we want this country to be a success with a strong and vibrant democracy? Yes.
If caring about this means getting involved in politics, then we will do. As for which candidate or party to support, that is for people of Uganda to decide.

We talk to leaders of all political parties – NRM, FDC, DP, UPC. Name them, we talk to them. We tell them that there should be a constructive electoral process in which people’s views are respected, where people engage each other respectively, where there is no room for violence.

So that, at the end of the day, no matter who wins the election, it is a credible result that services Uganda well and gives the new leader legitimacy to lead the country effectively and deal with the challenges that will emerge.

Do you share concerns by civil society that political space in Uganda is narrowing?

I don’t know whether it is narrowing down but I perfectly appreciate the challenges of civil society. But this is a constant dialogue we are always having with the Government to ensure that there is room for meaningful dialogue and engagement.

There is the NGO Bill currently before Parliament and during consultations; we have seen the NGO community, civil society engage with MPs in a robust dialogue that has brought significant changes to this piece of legislation. I don’t know what the final law will look like.

I know civil society would have liked to see the issue of electoral reforms addressed fully, but I leave that to Ugandans to debate among themselves about the need to strengthen the democratic process. We have seen in US that even after 250 years, we are still working to improve our democracy.

Update: To understand the context and significance of the Museveni government’s continued stonewalling, see today’s Daily Monitor: The Unresolved Question of  Electoral Reforms, What it Means for 2016.

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