Election Litigation in Kenya: What is status of preservation and sharing of forensic evidence from KIEMS on Results Transmission?


Short answer is people involved are extremely quiet on this front.

On my end I had my periodic status call today on my 2015 FOIA request to USAID about records relating to our support for the IEBC in 2013, including the failed Results Transmission System. Nothing new since April.

This is part of what I wrote July 3:

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:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

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).

The 2017 Kenyan Supreme Court petitions are under a final seven day deadline of today.  [Update: NASA has filed a challenge Friday night in Nairobi, to my understanding joined by The Thirdway Alliance.  Do not know of others.]

“Preliminary Findings” released by Kenyan civil society coalition on election

Following the unlawful raid on AfriCOG in Nairobi yesterday, today the Kura Yangu Sauti Yangu election monitoring program which has been engaged since long before any of the International Election Observation Missions were constituted, released its Preliminary Findings.

Please read for yourself (especially if you have commented publicly so far on Kenya’s election).

It would be easier for Mr. Chebukati and Mr. Kerry to make their case to Mr. Odinga’s supporters with much greater transparency

There is a lot that Kenyan voters could be told that they have not been told about how their votes were represented to them by the IEBC over the last several days since they voted and all the ballots were counted Tursday evening.  As assurances given to the voters in 2007 and again in 2013 in the immediate aftermath of voting those years did not in some substantial respects turn out to be factually sustainable, it is no suprise many Kenyans would want to verify rather than just trust now.

One would expect everyone involved this year to anticipate questions.  There were lots of prominently published warnings of the need for transparency (from the International Crisis Group among others).

Mr. Kerry was Secretary of State in 2013 and presumably has current clearances that would allow him as an individual, now post-government service, to make doublely sure he is fully briefed about the failed Results Transmission System of 2013, as well as other past problems, if he wasn’t before coming to Nairobi last weekend for the Carter Center.  Presumably he could also ask the current US and Kenyan governments to go through the details relating to procurement and use of KIEMS this year.  Then he could answer questions and demonstrate the kind of transparency that would build trust.

Alternatively Mr. Chebukati and the current U.S. government could answer questions irrespective of the Carter Center or other independent Election Obsevation Missions.

[Updated 11 Aug] Kenya election updates 

My update is to just say Kenyan IEBC is not done with their job, but I’m done saying anything at all about this election process so far.  Since I’m not involved it doesn’t help to offer public commentary.

International Crisis Group report on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet

Counting-the original tally

Counting-the original tally

“Kenya: Avoiding Another Electoral Crisis”  March 2017 International Crisis Group paper by Murithi Mutiga

Political tensions are rising in Kenya ahead of elections in August for the presidency and other senior posts. Measures taken now can avert the risk of a repeat of electoral violence that killed hundreds of people in 2007-2008.

.  .  .  .

The equipment for transmitting results from polling places to the tallying centre is as important as the voter kits. Past elections were compromised by lack of transparency in tallying and transmitting. The installation of a transparent, efficient electoral management system would go a long way to assuaging public concerns. Unfortunately, rushed procurement, with little lead-time for testing, may set the IEBC up for failure. That would also deepen suspicions in a situation already marked by significant tension between parties. Government steps to limit the role of external partners, such as the International Foundation for Electoral Systems, that can offer valuable technical assistance, have not helped.

.  .  .  .

International partners should extend technical and financial help to the IEBC to help it better tackle the challenges. This should, however, be done with nuance, flexibility and complete transparency, in light of unfounded claims by the ruling party that external parties are seeking to influence the electoral outcome. International observers should be deployed in time to monitor crucial stages of the electoral process, such as verification of the vote register and procurement of electoral materials.

. . . .

Unfortunately, USAID is still stuck on maintaining minimal, at most, public disclosure, rather than adapt to the recommendations of the Crisis Group and the obvious lessons to be learned from the failure of 2007, especially, and 2013.

While USAID Kenya has confirmed for me that their original December 2015 Request for Agreement (“RFA”) for the $20M “Kenya Electoral Assistance Program 2017” remains a public document at http://www.grants.gov, the subsequent Agreement between USAID and IFES is not being treated as public.  Americans who want to understand our government’s approach to subsidizing the Government of Kenya’s election would be well advised to study the Request for Agreement (rfa-615-16-000001-keap-2017) closely to understand the basic structure, but will need to “ask around” informally to get any actual detail as the election now rapidly approaches.  Likewise, Kenyans who want to have input in the administration of their own election.

Meanwhile, still no documents whatsoever, from my October 2015 request for USAID documents relating to our support for the 2013 Kenya election (!).

See “IEBC must look us in the eye and say, ‘We aren’t ready for August'” by Tee Ngugi in The East African.

Solo 7 — Toi Market

How did Donald Trump get this far?; our actions in Kenya since 2007 are an example of why Americans are frustrated [updated 10/10/16]

[I updated to correct an error — the USAID Inspector General, rather than the U.S. Government Accountability Office, conducted the referenced investigation that found USAID funds went into supporting the “yes” campaign in the 2010 Kenya referendum, rather than providing only neutral process support for Kenyan voters.]

Longtime readers of this blog will well recognize Kenya as a glaring example of the refusal of our government and the surrounding networks of foreign policy elites in the larger Washington Beltway community to seriously self-assess and try to level with the American people in such a way as to build trust and confidence (even  in the face of our serious and determined foes).

The stolen election in Kenya and its aftermath in 2007-08 was clearly a catastrophe for both the Kenyan people–whom we are continually trying to assist to the tune of hundreds of millions of dollars a year–and for security interests of the United States (whatever real or rationalized internal claims might or might not exist to justify our policy of “looking, and pointing, the other way” as we saw the election being stolen).  So far as I can assume, the Kibaki team would surely have done whatever was necessary to obtain the ECK certificate as “winner” of the election irrespective of the actual voting even if “we hadn’t even been here” (see here) but the very least we have to conclude is that our elaborate and expensive electoral assistance effort was in crucial respects a failure.  And we certainly do have to consider the possibility that the other donors could have done better to accomplish what were identified as the common objectives without us and our leading role.

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A key reason I have dedicated my “War for History” series to my late friend Joel Barkan–along with my late friend Peter Oriare–was that Joel was one of the rare people in Washington willing to speak out when he saw our country making what he saw as a foreign policy mistake.  He wisely warned IRI that we were risking embarrassment along with the State Department.  Was he thanked when it became obvious that he had been right?–no, he was attacked instead, in the finest Washington tradition of “CYA by pointing your finger at the person who suggested you ought not to show it in the first place”.

Having found myself playing a bit part due to working for a “charity” that got tagged, along with USAID, by our Ambassador to play a role neither my organization nor USAID sought as of the time I moved my family to Kenya to help out, I find myself being the only one seemingly willing to offer any type of public mea culpa for those decisions that I would make differently in hindsight.  And I know that I absolutely did my best even though I was not successful overall.  I cannot help but wonder if that is really the case for everyone, given all the various potential interests to be served.

In spite of how badly things went we have just given ourselves credit–and let the individuals who were in key roles publicly pat themselves on the back–for helping to keep the aftermath of the stolen election from being worse than it was.  I did not have any personal animus against Ambassador Ranneberger and did not want him to be precipitously “recalled” as a result of my complaint about his interference with the election observation, but I would never have imagined that with a big political turnover in the U.S.–based to a great extent on a public loss of confidence in foreign policy decision making–Ranneberger would still end up being one of the most prominent public actors in Kenyan politics–on behalf of my country–for several more years afterward and be our second-longest serving Ambassador to Kenya ever.

Through the persistence of the subsequent Chairman of the House Foreign Affairs Subcommittee on Africa, Rep. Christopher Smith, we eventually learned through a Kevin Kelly story in Kenya’s Daily Nation that the USAID Inspector General had determined that an “eight figure” sum of money had bled over from lawfully neutral process support for constitutional reform into the 2010 “Yes” referendum campaign. Personally believing that on balance Kenyans would be better off to pass rather than defeat the referendum, I was embarrassingly gullible myself in being hesitant to credit Congressman Smith’s concerns in this regard until I saw the reporting on the USAID Inspector General’s findings.  Shocking that the Ambassador who was not neutral in the 2007 vote was not neutral again in 2010!

In the 2013 general election, the administration of the process was in substantial ways even worse than in 2007 as capably pointed out by John Githongo and many others of earned expertise. Our assistance was much more expensive, and while not so controversial, was again not very transparent  at all.  (Still nothing on my public records request to USAID regarding our spending through IFES on Kenya’s IEBC and its corrupt technology procurements.)

And now, here we go again.  The Uhuruto re-election gears up against the ODM-led opposition with the Government of Kenya facing its inevitable referral to the Assembly of State Parties of the International Criminal Court since it–inevitably and predictably–refused to meet its legal obligations to cooperate with the Court.

The individual who served as Assistant Secretary of State during the 2007-08 catastrophe, as a private citizen but identified primarily in her role as a former high ranking diplomat, was a key figure again in the 2013 campaign–this time speaking out (informally I assume) to accuse the United States Government of interfering in the election in the opposite direction, in favor of the opposition and against her preferred candidate, Uhuru Kenyatta.  While she was within her rights, her argument seems counterfactual when you look at how U.S. assistance to the Government of Kenya and NDI/ELOG and IFES for the election was actually used in totality: to sell whatever the IEBC decided, even without a transparent tally and even though we had some real knowledge of the corruption issues that have eventually come out to the point of forcing their buyout after the Opposition was willing to protest on the streets this year.

If you will read the ELOG final report from several months after the election, you will see that it appears that the NDI/ELOG Parallel Vote Count had more problems with falloff of planned data collection than the 2007 IRI exit poll–but since it involved a much smaller universe of locations than an exit poll I’m not sure that this could be adjusted for (if attempted).  So the idea that the 49.7% PVT result “VERIFIED” that Uhuruto received more than 50% looks that much more like advocacy for the IEBC rather than facts for the voters.

I would never vote in a scenario that I can readily imagine for Donald Trump or someone much like Donald Trump as best I understand him.  I agree that his positions–none of which I assume reflect any sincere value judgments–are dangerous to our country now and for my children’s future.  But if you don’t understand why many Americans might have some temptation to go for “the candidate of the middle finger” out of frustration with a sense that “Washington” isn’t actually working on their behalf as they send their taxes, you cannot be getting out enough.

An appreciation for church leaders and diplomats pushing dialogue in Kenya; next steps?

Someday, my hope remains, administration of elections in Kenya can be a straightforward and transparent affair that is not the stuff of secrets, drama and death.  However, that is not an option on today’s menu.  Church leaders by first speaking out earlier on the need for reform of the IEBC, followed by a call for dialogue now with escalating tensions and killings by police, have served the needs of the mwananchi; the foreign envoys who have spoken collectively both publicly and presumably privately during the recent opposition demonstrations and crackdown have added muscle toward an a needed de-escalation.

Next steps: let’s lance the boil of secrecy in the administration of elections; I firmly believe that Kenyans can be trusted to know how they voted and that counting votes in Kenya does not really have to be harder than in other countries.  

Without the secrecy, the opportunity opens for the more patriotic and more humane voices within the policitical process, both within parties and in civil society, to come to the fore.

Tanzania Decides: EU, Commonwealth, AU and SADC observers issue joint statement regarding election and Zanzibar annulment; call for transparency

October 29 Statement
internationalobservermissionsjointstatement_en.pdf

LSE’s Africa blog asks: Is Tanzania’s National Election Commission credible? 

Hillary Clinton, Scott Gration and “public private” e-mail at the State Department

The news in today’s New York Times that Secretary of State Clinton did not use a government e-mail account during her service in office, but rather handled her official e-mail communication through one or more “private” accounts is a disappointment. Cabinet level officials are not entitled to simply exempt themselves from the full demands of government records and freedom of information laws.

This is one of those areas where we need to “walk the talk” if we are going to provide effective leadership on open governance and rule of law.

One of the things that makes this especially disappointing is that this problem came up prominently in the Bush Administration where a large number of officials in the White House were using a non-government system through the Republican Natiional Committee. The company I worked for at the time was involved in dealing with the mess of trying to recover public records involved in White House e-mail over a period of years. It appears likely that Mrs. Clinton will be the only candidate for president next year with much actual foreign policy experience, which many voters might consider to have quite a lot of weight in light of our experiences with inexperienced presidents over the past fifteen years. Unfortunately, this public records situation seems to be a case where readily available learning from past problems was not applied.

A couple of other points: first, it seems quite striking that Ambassador Scott Gration was severely criticized by the State Department’s Office of the Inspector General, in the lead up to his resignation, under Secretary Clinton, for his use of insecure private e-mail accounts; second, if the Secretary of State was during her four years in office not using an official e-mail account at all, it seems to strain credibility to think that this mode of operation was not understood and effectively acquiesced in by a whole lot of other people in government.

Based on the reporting it appears that the records have been identified and preserved and will be available. I also recognize that the way that most of us use e-mail is a difficult match with the requirements of government records and freedom of information laws and that there will inevitably be issues, challenges and disputes in certain areas. Nonetheless, if we are to have a system based on the rule of law and a government “of laws, not of men”, the highest federal officials are no more entitled to simply opt out of the system than are, say, the members of a local school board.

OIG Inspection Embassy Nairobi Kenya August 2012:

He has willfully disregarded Department regulations for the use of commercial email for official government business, including front channel from the Assistant Secretary for Diplomatic Security against such practice, which he asserted to the OIG team he had not seen. (This topic is addressed later in the report.)

In the looking glass: How USAID sees its democracy support in the 2013 Kenya Election

Thanks to a post this week from Government Executive magazine’s NextGov.com I saw that USAID has published on the web its December 2013 “Rapid Assessment Review” of USAID support for Kenya’s 2013 elections.

The post from NextGov’s Emerging Tech by Joseph Marks, “How Technology Failed to Fix Kenya’s Election”:

It’s perhaps the most common story in all of government technology: A challenge arises; new technology seems to offer the perfect solution; but something happens between concept and execution that makes that technology seem more like a culprit than a savior and that leads people to complain the old analog solution might have worked better.

That interference could come from a delayed procurement, miscommunication between different vendors, a lack of testing or training before launch or a host of other factors.

This December 2013 report from the U.S. Agency for International Development describes more than a dozen such interferences that foiled the international community’s attempts to use technology to improve outcomes in Kenya’s March 2013 elections.

.  .  .  .

Kudos to USAID for publishing this.  Although there is one major “glitch” that I will explain, the report is generally quite useful.  In particular for Kenyans who want to understand the process by which their leaders are chosen, there is much here that is not otherwise readily available to those outside the Government of Kenya itself.  Thus, Kenyans active in political parties and civil society, the media and others that are especially interested in elections will want to take time to read the whole report carefully.  Likewise for interested foreign “friends of Kenya” who hope for better elections in the future, especially those of us who are U.S. taxpayers.

The “glitch” is that the report was released with a December 31, 2013 date, which is several weeks after publication of the Carter Center’s final USAID funded Election Observation Report,  but references only a non-published June “draft final” report and the April 4 Carter Center preliminary statement.  So it appears that the report was written without reference to the actual Carter Center final report, likely inadvertently through the fact that the authors were doing this study simultaneously with the Carter Center’s work.  See my post Carter Center quietly publishes strikingly critical final report from Kenya Election Observation.

On one hand this is a fundamental problem leading to a quite critical misunderstanding. The assessment presents a quote from the Carter Center’s April 4 statement that the failure of the USAID supported Electronic Results Transmission system still left a paper tally system that was sufficiently handled to provide “enough guarantees to preserve the expression of the will of the Kenyan voters” which is contradicted by the Final Report.

Nonetheless, this is in prefatory material and the point of the assessment is not to make conclusions about the election process itself, but to self assess USAID’s programming, and a bit of a “rosy tint” that allows the whole thing to be packaged as “lessons learned” for other missions in the context of an overall “success” with various subsidiary failings may have made the difference in getting this ultimately published on the internet, with a lot of pertinent information and a fair bit of candor for a “self assessment” overall.  I am still deep in the bowels of the Freedom of Information Act legal process seeking more modest bits of information about the election support effort for 2007 as an example of what can happen within the bureaucracy when no one can claim “success”.

Please take time to read the whole thing and I will be grateful for anyone who wishes to e-mail thoughts or comments, and of course any public comments here.  I will discuss some details in various upcoming posts.

IRI Poll Releae Press Conference