From the Carter Center Preliminary Statement (August 10): 
For a Kenyan view, see “IEBC results: We’ve more questions than answers” writes Muthoni Wanyeki in The East African on August 22.
For three years running, Kenya has ranked below Nigeria in Transparency International’s Corruption Perception Index, coming in most recently tied at 145 in the list of 176 countries.
Even the most crucial security sectors, including most especially the police services (which, by the way, have received aid in training and other support from the United States since 1977) are pervasively corrupt and widely feared.
Under the circumstances it would be an extraordinary feat–rooted in a resolute act of will–for the Kenya’s IEBC (and its donors) to pull off a relatively clean and transparent election process. You will have to excuse me for being concerned after my experiences in 2007 and 2013.
So far, we have had special legislation passed by the ruling party early in the year in parliament over opposition objections to mandate a “manual” backup system for reporting the votes from the polling stations in the event the electronic system “fails” as it did in 2013. It is now barely more than 30 days before the vote and the IEBC has not explained what this manual system is. I was told in 2014 by a donor insider that in 2013 the IEBC had no “plan B” in place to obtain results from the polling stations even though they had gone ahead and scrambled, kicked observers out of the tally process, and announced final presidential results after the electronic reporting system was shut down. Clearly the IEBC needs a “plan B”–whatever it is–both as a practical matter and now as required by law. And it needs to be transparent, now.
The Kenyan court ruling that the votes as counted at the polling station are legally final and not subject to being unilaterally changed without legal proceedings by the central IEBC process certainly helps–but there must still be a process to gather the numbers as posted on the door of each polling station (and to note any polling stations where the results are not publicly posted as required). According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.
Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:
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)]
This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015. Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.
In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).
Warnings about transparency have been outstanding for months from the International Crisis Group (See: International Crisis Group on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet.) and most recently Ambassador Mark Bellamy has published a June 29 assessment for the CSIS Africa Program noting the need for more transparency from the IEBC (Kenya’s Young Democracy Put to the Test.)
This year’s version of the “results transmission system” is wrapped into one big high risk procurement for the “Kenya Integrated Electoral Management System” of “KIEMS” which includes both the electronic voter identification system and the results transmission system. The ordinary procurement system failed to generate a legally sustainable award for this system. The new IEBC, running out of time, announced a sole source award this spring to one of the unsuccessful previous bidders, the French company Morpho.
A related company, Safran Morpho, was given a 2012 sole source award for the BVR kits for the 2013 election — which ended up with the election day use of a separate hard copy printed register at each of 30,000+ polling stations rather than an integrated and biometrically verified system. The sole source purchase in 2012 was announced as a “state to state” transaction–which eventually came out to mean some type of loan from the Canadian Government to the Government of Kenya (involving a Canadian subsidiary of the French parent). When the sole source transaction to buy the KIEMS system this spring was announced by the IEBC, it was reported in the media as again a “state to state” deal–with no details as to what states or what terms. The IEBC announcement gives no indication as to whether the reporting of a “state to state” deal is accurate or otherwise whether there is any donor funding involved.
Who has paid for and/or financed the KIEMS system? Will it work as advertised? If not, will the IEBC or the donors tell voters ahead of time?
“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 CREDIBILITYSomething 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.
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;
(1 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)
(2 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)
(3 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)
(4 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)
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).
As I wrote more than two years ago, as more information was being uncovered in the UK’s prosecution of Smith & Ouzman, Ltd. and its owners for bribing Kenyan election officials for favor on procurements: USAID’s Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers.
Also see: “Thoughts on Kenya’s Supreme Court Opinion” from April 2013:
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.
See also: “Nigeria example shows U.S. and other donors should act now on Kenya IEBC technology procurement corruption“.
The new Kenya IFES country director has arrived in time to learn her way around for the August election, just as Kenya’s Independent Electoral and Boundaries Commission (“IEBC”) has thrown in the towel, again, on a crucial technology acquisition–and once again going with a “sole source” procurement with Safran/Morpho (as with the BVR kits in 2013) to save time since they are already late.
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 2013, the domestic observation, ELOG, initially “verified” the incomplete “final results” announced by the IEBC but eventually released a significantly critical final report. Similarly, the Carter Center provided key initial bolstering of the IEBC’s position in their preliminary report but issued a much more critical final report months later. See Carter Center quietly published strikingly critical Final Report from Kenya Election Observation.
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.
Counting in Nairobi suburb
The criminal complaint unsealed yesterday by the U.S. Attorney for the Southern District of New York of six individuals, including John Ashe, the former President of the U.N..General Assembly, and five others involved in a bribery and money laundering scheme to illegally advance the fortunes of Chinese-based business interests, includes a section entitled “YAN and PAIO Arrange Additional Payments to Ashe in Exchange for Official Acts on Behalf of a Chinese Security Company”. [See pages 26-30]
The “official acts” alleged involved Ashe acting on behalf of the unnamed “Chinese Security Company” as a go-between with unnamed “Kenyan Officials” to facilitate the pursuit of Kenyan Interior Ministry procurement.
“We see Africa’s potential”
This week’s Africa Summit in Washington suggests hope for a deeper, broader engagement between the United States and many African countries. This is a policy area where there seems to be substantial room for negotiated agreement and cooperation between Republicans and Democrats. While there are things that I wish we would do differently, I am glad to see the effort and attention and I will watch with interest.
Following is a “guest post” from Andrew J. Franklin, an American now leaving Kenya after more than thirty years of Kenya’s fifty year independent history. This was originally written back in May, after the election failures but months before the Westgate fiasco, about which we learned more damning information with the report this week from the review by the NYPD:
“It’s mid-May, do you know where your election results are?”
Good question! As Kenya prepares to celebrate 50 years of Independence – and, remarkably for Africa, largely free of tribal massacres, wars, natural and/or manmade disasters, successive failed or successful military coups d’etat, vicious secret police operations or state sponsored “disappearances – this steadily failing state is increasingly unable to conduct normal run of the mill governmental functions.
The GOK was able to carry out a national census until the late 1990s, deliver mail and inland cables, find the owners of automobiles allegedly involved in traffic offenses, pay pensions, etc. The more international assistance and support for the GOK and its myriad associated agencies, parastatals, universities and authorities the faster state operations have deteriorated.
The incredible investment in “IT” prior to the 2013 General Elections was not only supposed to prevent or mitigate electoral fraud but was also a belated recognition of just how bad government administration had become.
The IEBC was unable to organize or conduct “voter education” prior to the March 4th polls and is probably unable to find all 120,000 (?) temporary workers hired for these elections; media reports indicate that election- related pay owed to the police, NYS recruits and prison warders has still not been paid.
In essence it is an amazingly foolish leap of faith to expect the IEBC to release any election results for President, Governors and members of the National Assembly and Senate. The longer these results are kept from the public the greater will be arguments that these elections were stolen; 50% of the country is already on a slow boil and the new administration is clearly not able to handle long simmering insecurity in Mandera, Garissa and Wajir Counties or in Western Kenya where criminal gangs are terrorizing the populace.
Reports of a resurgence of Mungiki in and around Nairobi as well as continuing MRC related activity in the “Coast Province” counties – including Lamu – show that the state of national insecurity is more serious than anyone will publicly admit. The heavy handed response on Tuesday, 14/05/2013, by some 400 “security personnel” drawn from the disparate forces within the “National” Police Service to only 250 noisy demonstrators – and 15 or so pigs and piglets – outside Parliament showed an usual lack of any police command and control.
Meanwhile the Obama Administration seems blissfully unaware or unconcerned of the situation in Kenya; our bureaucrats just seem to be hunkering down and covering their asses.
Reports that the police fired live ammunition to “break up the crowd of peaceful demonstrators” after tear gas and water cannon proved “ineffective” indicates a lack of discipline or concern for innocent bystanders or onlookers in offices, shops or even the carparks in the vicinity of Parliament right smack in the CBD!
The use of live ammunition to quell demonstrations in Kisumu in the aftermath of the Supreme Court decision on March 30th elicited little comment in the domestic media and certainly no public protests from the US Embassy. Apparently the rubber bullets procured by the NPS prior to the elections are still in their original packing?
The bottom line is that “Something’s happening here. What it is, is very clear…” To Some!
Andrew J. Franklin, J.D.
Former U.S. Marine, resident of Nairobi since March, 1981
[Update: here is the Sunday Standard, “How Raila’s poll petition may change the whole game”]
“The many questions IEBC needs to clear with Kenyans over elections.” The Saturday Nation
The “media zombie” awakes with a recitation of damning basic questions about the systems employed by the IEBC.
AfriCOG and other Kenyan civil society groups were left as lonely voices before the election while the public relations of the IEBC and the rest of the Kenyan Government, propped up as best I can see so far by the “western donors” (with money from taxpayers like me) and the “aid industry” peddled false assurance. I will have to admit that the situation is significantly worse than I had realized.
And then beyond the systems that were not even seriously in place, we have the specifics of bogus numbers coming out with election challenge petitions by AfriCOG and by the CORD campaign filed today. So much like 2007 only worse in terms of a mass “overvote” in the presidential race.
“Halt the Party, It’s not yet Uhuru”, Wycliffe Muga in The Star.
In the New York Times, Jeffrey Gettleman notes the extreme pressure on Kenya’s judges:
The case is sure to be a test of Kenya’s recently overhauled judiciary. It is now much more widely respected, but some analysts have questioned whether all six Supreme Court justices will be able to withstand the pressure of refereeing such a high stakes contest for power. Even before the election, the chief justice received death threats, and analysts have raised questions about the independence of some of the other justices.
From Kui Kinyanjui in the Nairobi Business Daily:
The technological revolution in Kenya’s electoral process became abundantly clear as the final numbers came in from Wednesday’s referendum.
Analysts said the digital shift contributed to making the referendum a more transparent affair, with citizens emerging as a vital tool in ensuring the process remained free and fair.
The biggest beneficiary from the transformation is likely to be the Interim Independent Electoral Commission (IIEC), that effectively received the mandate to fully digitise the elections process.
“We have learned that the use of technology has greatly enhanced the process and sped up the gathering of results,” said Isaak Hassan, IIEC Chairman.
More than 27,000 GPRS-enabled mobile phones were used to send results from polling stations to the main tallying centre at Bomas of Kenya in Nairobi.
“Using mobile phones, SMS and some software we got results securely checked into a central server, tallied and instantly relayed to the public … this is eGovernance without the usual big budgets and failure that often accompanies ICT projects,” said industry analyst John Walubengo, on an online forum.
In 2007, the ECK elected not to use the technology at the last minute, the votes for president were not reported honestly and chaos ensued. Congratulations to everyone involved in the Independent Interim Electoral Commission for showing how it can be done and delivering an election to be proud of.