Kenya presidential re-vote: highlights of closing argument for invalidating the IEBC’s second try

The good people at www.NeverAgain.co.ke have given us an edited version of the concluding argument in the Supreme Court from Julie Soweto, counsel for petitions Njonjo Mue and Khelef Khalifa: Kenya’s Supreme Court judges have a choice between upholding the beacon they raised or apologizing for doing the right thing:

We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.

The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.

We are going to demonstrate that IEBC and the chairperson simply did not do this.

. . . .

Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.

. . . .

Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.

Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?

IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.

Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?

That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.

What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.

Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.

Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.

. . . .

What to do now in Kenya?

Old Party Office in Kibera

Solo 7–Kibera

Kenya’s election rerun could be a major setback for African democracy” a new Washington Post editorial was published Monday evening in the United States.  I suspect The Post here has fairly well reflected the general view of the Kenyan situation in Washington.

What to do?  I think the International Crisis Group has a long track record of assessing conflict in Kenya and offering helpful suggestions.  They did good work that I relied on in the 2008 crisis.  The Daily Nation picked up their latest recommendation here:

 

At the same time, a conflict prevention organisation, International Crisis Group, asked the Independent Electoral and Boundaries Commission to go back to the Supreme Court and seek a limited extension of timeline by 30-45 days to allow all parties to take part in the election and avert a crisis.

The group said Kenya’s political leaders should support such an extension and commit to participate.

SUPREME COURT

According to ICG, the precedent for such a delay exists.

“The High Court in 2012 delayed elections by six months, which helped ensure a credible and peaceful vote,” the group said in a statement.

“The Supreme Court should favourably consider such an extension, given the IEBC chairman’s own acknowledgement that the commission cannot guarantee a credible vote within the allotted timeline.”

The ICG said that should it grant a delay, the court ought to state clearly that President Kenyatta would remain in office pending the fresh vote and that Nasa leader Raila Odinga should take part in a delayed poll without additional conditions.

“He should renew the welcome public pledge against violence that he made on October 20.

“He also should rein in and hold accountable supporters who have attacked election officials, made inflammatory threats to disrupt election or otherwise broken the Kenyan law,” the group said.

See my post discussing the International Crisis Group’s March report on “Avoiding another electoral crisis in Kenya”.

And see “World papers and magazines to postpone repeat poll” in the Daily Nation.

The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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Kenya Election – France24 Debate with EU Chief Obsever and Nanjala Nyabola (and more)

A worthwhile 45 minute discussion on the status of the Kenyan election in the wake of the Supreme Court ruling including particularly the role of the election observers:

France 24 Debate – “Kenya Back to the Polls: Landmark Ruling, Renewed Uncertainty”

Guests:
Marietje SCHAAKE
Dutch MEP, Alliance of Liberals and Democrats

Patrick SMITH
Editor in Chief, The Africa Report

Nanjala NYABOLA
Writer and political analyst

Roland MARCHAL
Senior fellow at CNRS, Horn of Africa Specialist

And here from Quartz Africa: Kenya Elections 2017 – Role of International Election Observers under scrutiny after Kenya’s presidential election annulment.”

Maina Kiai in his Saturday Nation column submitted before the Supreme Court announced its ruling annulling the election had this to say:

INTERNATIONAL OBSERVERS

And it has been disappointing to see international observers — some domiciled in Kenya and some from outside — play that same game. Is this because they don’t think we deserve better?

Or is this guilt about the waste of millions of dollars spent on the IEBC? Or is it because the election result of August 10 is exactly what these observers wanted?

If it is the latter, why on earth do we ever have elections in the first place? International observers — aside from the EU Observation Mission (not the EU in Kenya) — set a new low for what it means to do elections observations.

Best overall international piece so far on Kenya Supreme Court decision

Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”

One of the most important lessons from today is how cowed Kenya’s media really is by the Government.  This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres.  But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.

Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.

For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.

Periodically, Westerners are reminded of the brutality and politicization of Kenya’s paramilitary police [updated 18 May]

But there is not much new under the gun in Kenyatta’s Kenya.  

Three years ago, Kenya’s Supreme Court noted the appearance of corruption in Kenya’s election commission and directed investigation and possible prosecution.  No action eventually led to protests which are being brutally suppressed as we speak because the incumbent regime is apparently very afraid of reform, and is reacting just as it has in the past, and each of its predecessors has.

We have no right whatsoever to claim to be surprised.

Update 17 May: Bernard Ngatia, who was shown on video being mercilessly beaten by police, died from the injuries.  Update 18 May: Unsurprisingly there is a lot of murk now about the details of the beating victim from the video and whether he did or didn’t die. We can hope the media will clarify; the same issue of a pattern and practice of police brutality to squelch political dissent confronts us as we hope that thisvictim survived.

From today’s statement from free expression supporters Article 19:

ARTICLE 19 strongly condemns yesterday’s killing of a protestor by police, and injury of others who had joined the Coalition for Reforms and Democracy (CORD) politicians calling for the removal of the Independent Electoral and Boundaries Commission (IEBC).

ARTICLE 19 urges the police to respect Article 37 of the Constitution, which guarantees citizens the right to peacefully assemble, demonstrate, picket, and present petitions to public authorities, as well as its obligations under international human rights law.

New testimony in Kenya’s Parliament on Election Commission “Chickengate” procurement corruption ahead of visit by Obama and U.S. Congressmen

k”Ex-ICT boss tells Parliament that IEBC bungled 2013 electionThe Star July 22, 2015:

“We were put under tremendous pressure to ensure the Evids succeeded. Just days before the certification of the register, we were forced to transfer data, leading to serious discrepancies between the BVR register and the Evids one,” Ong’ondi said. Ong’ondi was speaking when he appeared before the parliamentary Public Accounts Committee chaired by Rarieda MP Nicholas Gumbo. The committee is probing the acquisition and subsequent failure of electronic devices used by the IEBC.

. . . .

He explained how business interests triumphed over responsibility upon the commission to deliver a reliable and effective ICT infrastructure that could guarantee, beyond reasonable doubt, a transparent election process.

He provided various dates on which Hassan and IEBC commissioner Mohammed Alawi reportedly forced him to meet individuals pursuing tenders in the commission, both in Mombasa and in Nairobi.

“I was forced to meet people pursuing highly valued tenders. During a retreat in Mombasa the chairman asked me to meet one of his friends whom he said was interested in seeking business with the commission,” Ong’ondi said.

Yesterday Hassan said he could not remember the said meeting . . .

. . . .

The International Forum for Electoral Systems had raised concerns that the tender for the supply of the devices be cancelled because of time constraints to effectively rollout the infrastructure. He said the technology was rushed, without enough time to train polling clerks, leading to massive failure of the system in many parts of the country. “It was true that some clerks were seeing the devices for the first time during the voting day.

From the Daily Nation:   “Hassan tried to influence BVR kits tender, MPs told

See also: USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers (February 17, 2015)

Why would we trust the Kenyan IEBC vote tally when they engaged in fraudulent procurement practices for key technology? (March 24, 2013)

Nigeria example shows U.S. and other donors must act now on Kenya IEBC technology procurement corruption (April 1, 2015)

Curriculum Cooking Kenya Vote

“Curriculum Cooking”

Nigeria example shows U.S. and other donors should act now on Kenya IEBC technology procurement corruption

For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC.  Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification 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.”   “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013.  See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.

From “USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers“, February 17,2005.

Election technology can work, in Africa, just as elsewhere, when it is not sabotaged by corruption.  Nigeria, a much harder case than Kenya, proved that this weekend.

While technology is “not a panacea”, it would have mattered in Kenya in 2007 when it was purchased for Kenya’s ECK at the expense of American taxpayers as an important part of our USAID assistance program if it had not been simply “shelved” by the ECK at the last minute (in a meeting the records of which the ECK refused to turn over to the “Kreigler Commission” charged with investigating the failed election).  It was a central part of the planned assistance program for 2013 shaped on the basis of the Kreigler Commission’s recommendations for what was required based on what was done and not done in 2007.  It was also in 2013 a central and necessary part of election process under the new Kenyan law for the new IEBC, replacing the discredited and disbanded ECK.  It mattered that it did not work, and that it could not have worked because of the failure to procure what was needed when it was needed.

Aside from the basic issues regarding the technology procurements that we have all known about since the 2013 election (and before in some cases)–so thus for more than two years at a minimum–we now have in addition–the “Chickengate” matter where bribery of IEBC officials for ballot paper printing contracts by a British company and its officials, through a Kenyan agent formerly employed by the IEBC, was proven in a court of law to the standards required for criminal convictions.

Yet we see no indication of legal action by the Kenyan government to follow through even on those bribes already proven in the British Court, much less a serious fulfillment of the two-year old recommendation of the Supreme Court of Kenya for the Government to investigate and possibly prosecute the technology procurement cases.  We certainly see that corruption issues are admitted to be remain pervasive at all levels of the current Kenyan government–and perhaps there is a newfound intention to address some of them (time will tell) but apparently no new mention of the IEBC. See “Read the list of public officers implicated in corruption and what the EACC accuses them ofThe Star, March 31. And “Analysis: Kenyatta’s corrupted corruption probe” by Simon Allison in The Daily Maverick, March 30.

What are we waiting for?  Shouldn’t we (the United States) have enough self respect to at least suspend our underwriting of this nonsense and to at least make it clear that we will investigate how our own dollars were spent regardless of what the Government of Kenya elects to do or not do?  Likewise other donors who may have paid for part of this?

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Initial thoughts on Kenya’s Supreme Court ruling

Congratulations to Kenyans on a peaceful resolution and Happy Easter.

First comment: we do all see that election violence in Kenya is not inevitable; what happened in 2007 has identifiable causes even if they have not been acknowledged or addressed, primarily the conduct of various politicians. People in Kenya do not simply run out and start killing their neighbors because their side lost an election. Having a credible Court helps a great deal, thanks to the passage of the new Constitution after all these years; kudos to those that made it happen through years of struggle.

Second: I am very proud of AfriCOG for carrying forward a tremendous amount of work in an unconscionably short amount of time to show that there were many unanswered questions about how the election was conducted and why, and how the votes cast at the polling stations were transformed into the March 9 “final results”. They carried a burden that should have been borne by an objective and independent IEBC, rather than facing a united front of the Government of Kenya aligned against scrutiny.

Third: I assume the Court announced what they agreed on unanimously, which was that the outcome was to deny the petitions. Whether or not all six justices individually agreed is something that we will probably never really know, but we will have to wait for the Court’s opinion in two weeks to learn more. Given the short amount of time and the schedule they have already been on, I suspect we will not get as much detail then as many have hoped for, but we will have to see.

Fourth: The Court ruled that each side was to bear its own costs–not the ordinary practice. I think this disposes of the claims by some on the Government side that the ruling indicates that the challenges were not substantial.

Kenya needs a better election review process next time . . . as respondents argue that IEBC has done “so much” that presidential election announcement should stand as good enough

So we are down to the hearing of the challenge to the presidential election involving some ten to twelve million voters in a country of over forty million. All of the voting was done by paper ballot and counting by hand. At the time of the hearing there is no list available to the petitioners or the court of who did and did not vote, nor one defined list of who was eligible as a voter.

Even with the breakdown of the intended election technology across the board, the IEBC announced a final vote count on the evening of March 8, just over three days after completion of the voting, in spite of having seven days available for the process, then formalized the result the next day, March 9.

It now comes down to one day of oral argument on each side in an adversarial proceeding between the IEBC represented by government counsel and AfriCOG and CORD for the Supreme Court to decide whether to let the IEBC pronouncement stand, or not.

There has been no administrative process or review, there has been no neutral body involved prior to the Supreme Court. The IEBC has been in an adversarial mode in defending its decision since the decision was made. The Court has determined that there is no time for detailed discovery of evidence sought by petitioners.

The Court will ultimately have to decide this case on the basis of generalities–either recognizing the standards required by the Constitution for voting were not met systemically:

Article 86:

At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple,
accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results
announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and
accurately collated and promptly announced by the
returning officer; and
(d) appropriate structures and mechanisms to eliminate
electoral malpractice are put in place, including the
safekeeping of election materials.

or, alternatively, the Court will defer to the the IEBC on the basis that its decision is unimpeachable except to the extent that it can be disproven vote by vote in detail through admissible evidence in adversarial litigation in one day.