President Biden and President Kenyatta had an apparently cozy visit at the White House. Biden got to host an African head of state after neglecting to do so around the UN General Assembly. Kenyatta got to “bring home” news of a U.S. vaccine donation, personal praise from Biden and a mutual reiteration about how well the Governments of our two countries do on cooperating on terrorism, business and generally on being “partners”. See the account from Kenya’s state media, KBC.
I do not think it unfair to read the tea leaves from this action by the Biden Administration–on the heels of announcing the appointment of Judd Devermont, late of the Center for Strategic and Studies, to formulate a new Africa policy (as John Bolton in the Trump Administration)–toward deciphering how the U.S. executive branch can be expected to play Kenya’s current election.
Of course, the “heck of a job” line is usually intended to be sarcastic in the United States, as remembered with poignancy by those of us who had personal experience with Hurricane Katrina on the Gulf Coast. As explained in Taegan Goddard’s Political Dictionary:
A “heck of a job” is a complete and total screw-up. It’s used, ironically, to show when one’s view of a situation is in contradiction to easily-observed facts.
The phrase comes from President George W. Bush who visited Louisiana in the aftermath of Hurricane Katrina and told FEMA chief Michael D. Brown, “Brownie, you’re doing a heck of a job.”
Brown later admitted he winced when Bush told him that: “I knew the minute he said that, the media and everybody else would see a disconnect between what he was saying and what I was witnessing on the ground. That’s the president’s style. His attitude and demeanor is always one of being a cheerleader and trying to encourage people to keep moving. It was just the wrong time and the wrong place.”
Brown resigned ten days after he was praised.
President George W. Bush tells FEMA Administrator Michael Brown he’s doing “a heck of a job.” (Photo: AP)
So at this point, Ambassador Godec is a seasoned veteran of Kenya’s post-2007 politics who knows the ground intimately from the last two election cycles. (His prospective “permanent” replacement, Mary Catherine Phee, was nominated in April and got a favorable vote by the Senate Foreign Relations Committee this summer, but a confirmation vote by the full Senate is blocked along with dozens of other nominees.)
I was asked a few months ago to write an article about U.S. support for the BBI process, but I have been unable to do so because it is not clear to me what our policy has been or is now, and I have not found people involved willing to talk to me. Given my role in telling the story of what went wrong in 2007 when I was involved myself it is no surprise that I might not be the one that people in Washington want to open up to now, but even people that I am used to talking to privately have not been as forthcoming as usual. Nonetheless, Kenyans inevitably have questions, and those Americans who care may in the future.
Members of the Kenyan Diaspora Alliance-USA have announced that they have sent Freedom of Information Requests to USAID and some Kenyans on social media and in a few cases in print have asserted suspicions or accusations that the U.S. Government was intending to back “unconstitutional constitutional amendments” in the form of the BBI referendum for some negative purpose. Looking at the degree to which the Obama Administration backed the passage of the new 2010 Constitution as the terminal event of the post-2007 “Reform Agenda”–to the point of having millions of dollars bleed over from neutral democracy assistance programing into supporting the “Yes” campaign in the 2010 referendum during Ambassador Ranneberger’s tenure–I am having a bit of difficulty understanding why my representatives in Washington would be working in general terms to undermine the new Constitution we helped midwife in the first place. At the same time it has openly been our policy under Ambassador Godec originally and then his predecessor Ambassador McCarter to support the Building Bridges Initiative and we did provide some USAID funding for the conducting the consultative process itself. I think it would be in the interests of the United States and of Kenyans for the State Department to get out front of the questions now, with the BBI referendum effort rejected both at trial court level and on appeal, and with the Kenyan presidential race that has been going on since the Handshake entering into its later stages.
We remain Kenya’s largest donor, we have many relationships and support many assistance programs of all sorts in Kenya. Most Kenyans remain in need, and we continue to have the same issues regarding terrorism as during the past 25 years (most especially since the 1998 embassy bombing). In general the geographic neighborhood is experiencing more specific crises and some overall erosion of peace, prosperity and governance. While we may not be as influential in Kenya as we were prior to 2007, and anyone with money can play in Kenyan politics, we will be engaged and we will have influence in 2022. So there is no time like the present to articulate what our policy is for the coming year.
Mama @IdaOdinga and I this morning hosted a farewell breakfast for the outgoing US Ambassador to Kenya @BobGodec who is leaving the country at the end of the month after six years in Nairobi. He promised continued support for the Building Bridges Initiative and war on corruption. pic.twitter.com/PdhXBsMF6j
Same issues as 2013 and 2017, same alleged frantic time-crunch.
For instance, the 2010 “New Katiba” granted the right to vote to Kenyans in the diaspora, starting with the 2012 general election. Even though the election was postponed to 2013, the IEBC under then-Chairman Issack Hassan elected to disenfranchise diaspora voters in spite of the coming into force of the new Constitution.
The current IEBC Chairman, Wafula Chebukati, was then appointed by President Uhuru Kenyatta from the nominees of a controversial selection process and took office in January 2017 in time for the general election and annulled presidential vote that August, marked by the unsolved abduction, torture and murder of the ICT Director and the subsequent resignation of a majority of the Commissioners.
Although civil society groups had obtained a 2015 court ruling to enforce the diaspora voting requirement of the Constitution, the IEBC still failed in 2017 to implement more than a very limited, truncated, diaspora vote process.
See “Diaspora Voting in Kenya: a Promise Denied“, Elizabeth Iams Wellman and Beth Elise Whitaker, African Affairs, Vol. 120, Issue 479, April 2021, Pages 199-217. (In 2010, Kenya extended voting rights to its estimated 3,000,000 citizens living abroad . . . Yet . . . fewer than 3,000 Kenyans were permitted to vote from abroad in the 2013 and 2017 presidential elections. What explains the failure of the Kenyan government to implement diaspora voting on a broader scale? . . . We argue that uncertainty about the number of Kenyan emigrants and their political preferences, paired with a highly competitive electoral climate, meant there was little political will to push for more widespread implementation of diaspora voting.)
Three years after the resignations of a majority of Kenya’s election commissioners, President Uhuru Kenyatta has formally taken notice of the four vacancies and gazetted the process through which he will appoint replacements.
Why now? While the President has not explained specifically to my knowledge, his ruling Jubilee Party is seeking to have the Independent Boundaries and Electoral Commission conduct a constitutional referendum within weeks to approve amendments derived from the “Building Bridges Initiative”. (A version of a proposal to amend the constitution was passed by most of Kenya’s county assemblies positioned as a citizen initiative. It is now before Parliament where there is internal debate among proponents as to whether to approve it for referendum as is, or to allow amendments to what has already been passed by the counties, which would raise additional legal questions. Challenges to the legality of the process to date are pending in the courts already.)
Remember that U.S. president Joe Biden has “been around”, with far more diplomatic experience than any of his four most recent predecessors in the White House. In 2010 as Vice President he met with Kenyan Speaker Kenneth Marende, along with President Kibaki and Prime Minister Odinga, ahead of that year’s constitutional referendum during the period in which Kenya was deciding between justice-oriented remedies and impunity for the 2007-08 Post-Election Violence.
Kenyan Speaker of Parliament Kenneth Marende seems to be getting an increased international profile. Navanethem Pillay, UN Commissioner for Human Rights, called on Marende on Monday, expressing concern regarding progress on prosecution of suspects for post election violence. According to the Standard she singled out Marende for praise, “saying he had made immense contribution in stabilising the country through some historic rulings and the manner he handled issues in Parliament”.
U.S. Vice President Biden will call on Marende Tuesday as well, along with his meeting with President Kibaki and Prime Minister Odinga.
Interestingly, Marende says that Parliament “would easily pass” legislation to provide for a “local tribunal” to try election violence cases under Kenyan criminal law “if the ICC acted swiftly by taking away key perpetrators of the violence”.
Biden will leave Thursday morning, the day of the South Mugirango by-election to fill the seat vacated by a successful election petition against Omingo Magara, originally of ODM. As it stands the race is hot, with Raila Odinga campaigning for the substitute ODM nominee, Ibrahim Ochoi, William Ruto campaigning for Magara running as a PDP nominee and heavyweights in PNU affiliates split among Magara and other candidates.
Now that it is clear that Kenyatta and Odinga will be leading Jubilee and ODM to sponsor constitutional referendum ahead of #Kenya2022 what can be done to triage the outstanding problems w/ Election Commission as seen 2007-17?
I am not going to invest a great deal of time mapping this out because the substance is obvious but details are deliberately obscured. If you are at all serious as a “Kenya Watcher” and are familiar with the basic public news trail on the Trump Organization, it is quite apparent that the net business wealth of the Trumps and the Jared Kushners is simply not at the US dollar value level of the Kenyatta family business empire (assuming as I do that the Trumps are not holding hundreds of millions of dollars of hidden assets overseas).
If you doubt me, work it up and show me that there is real reason to doubt the disparity.
These facts are critical to understanding the realities of the value of the presidency in Kenya and the relatively modest value of the presidency in the United States, even for a politician with perhaps an unprecedented view of the acquisitive opportunities.
If Trump were to get re-elected and get favorable dispensations from the Internal Revenue Service and his private sector creditors, and daughter Ivanka or son Eric were to be elected President in the future, and the Kenyattas fall off the pace somewhat in the next generation, then we can talk about the two families as “dollar peers”. As it stands, Donald Trump is a “first gen president” who had a father and grandfather who made a collective fortune that Donald did not succeed in breaking even with.
As an American I like to hope that a billion dollars still cannot buy everything a billion dollars could buy in Kenya, and that this will still be true even if Donald Trump actually becomes a billionaire someday through his children.
Sunday saw two deaths associated with clashes allegedly between factions within the ruling Jubilee Party.
The Presidential campaign of Deputy President William Ruto did a Sunday morning church and politics foray in Murang’a in what would be seen as President Kenyatta’s backyard. See the story from The Daily Nation on arrest orders from the IG of Police and a very strong warning from the National Cohesion and Integration Commission.
Circumstances are disputed between the supporters of the two politicians (Incumbent President Kenyatta and Incumbent Deputy President Ruto). It appears that government security forces were active and may have helped prevent worse violence—which could be encouraging—but that is just a superficial impression on my part from early reporting.
We are only 22 months away from a constitutionally mandated August 2022 General Election and violence in the campaign has been below what one would expect as the norm in the MultiParty Era. But the air seems pregnant with possibilities for both violence instigated by campaigns and for violent state repression. A constitutional crisis is afoot from the failure of the ruling party to effectuate the constitutional mandated gender balance in Parliament.
We are almost a year past the original release of a Building Bridges Initiative report. There is no clarity on exactly how long is to be allowed on what is now “overtime” on negotiating and agreeing on concrete steps to effectuate the changes to the basic bargain of governance in Kenya. The idea is to avoid the kind of competition we are seeing in the 2022 race as it stands now.
Germany is on social media as a lead on some of the civil society and domestic observation group preparation of the type that has been a staple but the U.S. and U.K. are unusually quiet in public about election specific issues now. There has been no public break at all in the partnership between Jubilee and the increasingly repressive Chinese Communist Party. Kenyatta has just signed a big debt and infrastructure deal with France as it becomes more apparent that the Jubilee Government grossly overpaid and thus over-borrowed on the Chinese Standard Gauge Railroad deal—which remains substantially secret.
The U.S. sent diplomats to facilitate post-election negotiations in late 2017 that culminated in the March 2018 “handshake” and we gave diplomatic support and National Democratic Institute facilitation to the BBI process.
As recently as April 2019 Ambassador McCarter tweeted with a picture of a visit from IEBC Chairman Chebukati that he hoped to see a 2022 election that did not involve a dispute or litigation. Without a investment in reform, which we have not seen, that would require either (1) a landslide of the sort that we saw with NARC in 2002 that gave rise to the 2003-05 democratic interregnum or (2) a recognition and consolidation of Jubilee as KANU successor.
Great discussion w/ IEBC Chairman @WChebukati We must work together today to ensure the wananchi have the ability to elect their leaders peacefully, without intimidation & the confidence their vote was counted. No court battles, no re-dos! pic.twitter.com/nt4N5Eb7jQ
In Washington the overwhelming public messaging is complacency. Kenya is very important to us because we are there in some real magnitude compared to the rest of the region and we are there because Kenya is important to us. But it is too early to talk about governance and elections and political violence, if for no other reason than the war against al-Shabaab is still going on as it was in the run up to the 2007, 2013 and 2017 elections.
IEBC Chairman Wafula Chebukati says the commission is shopping for an external consultant to audit its data systems to finally reveal what might have happened during the transmission of results in the August 2017 Presidential Election that was nullified by the Supreme Court.
Broaching the topic for the first time nearly one-and-half years later, Mr Chebukati said results of the audit will be made public.
“It is not true that we refused to open the servers,” he said, in reference to a Supreme Court order the commission violated. “What we need is an external consultant to carry out a systems audit and then open the servers to the public.”
. . . .
Accessing the commission’s servers has been a sensitive issue since the Supreme Court allowed Mr Raila Odinga to access the system during the presidential petition he filed after IEBC declared Mr Uhuru Kenyatta the winner of the August 8, 2017 election.
In a unanimous decision, the seven judges told the commission to open the servers because understanding how the system works would help the court come to a fair decision.
. . . .
However, the IEBC refused to open the servers, with its lawyer Paul Muite telling the court that the delay in opening the system was attributable to the time difference between Europe and Kenya.
“The IEBC servers are hosted in France, and the staff who are supposed to give the access window with safeguards are just waking up and will prepare the system in about an hour for the Nasa team to access,” Mr Muite told the court.
I feel obligated to raise the alarm about Kenyan election preparation with 2022 fast approaching and a potential contentious constitutional referendum even sooner.
Why worry? The track record.
Blatant fraud in the 2007 presidential election led to extensive violence, followed by “herd impunity” for the politicians involved in both the fraud and the violence. According to a later press report the US issued undisclosed sanctions against some members of the Electoral Commission of Kenya based on evidence of bribery but made no public disclosure or known follow up.
A murky 2013 election process gave power to primary figures understood by public reputation and ICC charge to be among the most responsible for the 2007-08 violence. Procurement fraud prosecutions from 2013 linger in Kenya’s courts and IEBC recipients of “Chickengate” bribes from a British election vendor have never been prosecuted (the British payers of the bribes have completed their jail time). The IEBC was replaced at the expense of some loss of life to protestors at the hands of the Government.
And of course we all know that Kenya’s 2017 presidential election was legally deficient to the point of being annulled by the Supreme Court, leading to the 2018 “handshake” under which Kenya’s is presently operating. The IEBC has lost a majority of its members–one fleeing the country. The CEO who was hired by and held over from the removed 2013 “Chickengate” group was fired, but there has been no prosecution for the election eve abduction, torture and murder of Chris Msando, the acting ICT Director.
To summarize where I am going to leave my Freedom of Information Act investigation of the failures to properly administer Kenya’s 2013 election:
I submitted a Freedom of Information Act request to USAID in 2015 for their records on support of the IEBC for 2013. The records were sent to Washington from Nairobi in late 2015 and released gradually between April 2017 and May 2020.
USAID eventually has provided a fair bit of material about their Kenya Electoral Party and Process Strengthening Program, but redacted the basic reporting and evaluation of what went wrong with the failed procurement of a Results Transmission System and the rest of the technology and other failures at the IEBC. To me, the redactions based on the assertion that this material is exempt from FOIA as proprietary commercial information of the not-for-profit International Foundation for Election Systems, IFES, were not plausibly legally justified. At this point, I am disappointed as an American that USAID was unwilling to be more transparent, because I think the continued failure to have an open accounting of the problems in the 2007, 2013 and 2017 election assistance programs leaves us in an unnecessarily poor position to hope to do better in 2022.
For some Americans the 2013 election in Kenya was a big success because Uhuru Kenyatta and William Ruto took over from Mwai Kibaki, Kalonzo Musyoka and PM Raila Odinga without the level of violence associated with the preceding 2007 election. For others of us, and for many Kenyans, the failure of the Results Transmission System and the lack of a credible total vote tally mattered quite a lot. How people actually vote matters. The failure compounded the bad precedents that played out with more election technology procurement and other problems in 2017 and are still “on deck” today.
At this point I am going to leave IFES and USAID to decide what their consciences and legal standards require about the problems from 2013 rather than try to pry more information out through “pro bono” legal work. Three years has gone by since the annulled 2017 vote without even bringing the Kenyan procurement fraud prosecution from 2013 to trial, let alone taking any major steps forward to fix things for 2022 or a pre-election referendum. This is wrong, as well as dangerous, and I think we Americans could help this time if we are willing to (after attending to our own challenges in preparing for our own elections).
I will include one new document to show the nature of the problem: an email between USAID and IFES from the afternoon of March 7, 2013, three days after the vote at a time when the Results Transmission System had failed. IEBC Chairman Issack Hassan had announced that the Commission had shut down the system and I was at the High Court with my AfriCOG friends seeking an injunction to prevent the IEBC from announcing a “winner” without the full results.
The EU Election Observers attended the court hearing but I don’t know if anyone from the USAID-funded international or domestic Election Observation teams did, or what they knew at the time about the procurement failure on the Results Transmission System. Regardless, I think transparency was needed in real time, and I certainly do not see the values served by keeping the substantive reporting on what went wrong under wraps seven years later (aside from the question of FOIA compliance).
We’re two years to the next poll if August still holds as the election date, which means the window for reforms is slowly closing, and if we don’t start pushing and getting some of these policies, rules, regulations and structures in place, we risk repeating the same mistakes we made in 2013 and 2017 and even earlier,” warned Ms Regina Opondo, the chairperson of the Election Observation Group (ELOG) steering committee.
Mr Ndung’u Wainaina, the executive director of International Centre for Policy and Conflict, told the Nation that the IEBC needs to be given financial autonomy and to devolve its resources down to the polling stations.
“IEBC should be reformed to restore public confidence, credibility and integrity. The problem is not the Constitution, but how the IEBC Act and recruitment of personnel is designed, which allows gross political interference,” Mr Wainaina said in an email to the Nation.
Here is my page with blog posts from the 2013 election cycle as seen from a public view outside of the Kenyan or donor governments.
I spent part of Independence Day during my year in Kenya at the party at the American Embassy residence. I had a nice time and appreciated the Ambassador’s courtesy in inviting me, but I was a bit surprised at the choice of featured speaker from the Kenyan government, the then-Minister of Internal Security John Michuki. Also on the dais were Vice President Moody Awori and the “Leader of the Opposition” Uhuru Kenyatta. Michuki talked about his recent “security cooperation” visit to the U.S.
Michuki struck me as a particularly ironic choice of headliner for such an event celebrating American democracy because of his notoriety in regard to a high profile and highly symbolic act reflecting a deteriorating state of respect for political freedoms in Kenya not much more than a year earlier. Here is how Canada’s diplomatic magazineEmbassydescribed the Kenyan government’s raid on the Standard Media Group in March 2006:
The malignant designs against the media took centre-stage in Kenyan politics two weeks ago when a dozen hooded policemen raided the newsroom and printing press of Kenya’s oldest daily newspaper, The East African Standard, and its television station, Kenya Television Network (KTN).
It was a commando-style midnight raid. Printed copies of the newspaper ready for morning dispatch were burnt and the printing press dismantled. The police squad, code named Quick Response Unit (QRU), then switched off KTN and took away computers and accessories. Upon their arrival at the media group’s premises, they ordered staff to lie down and robbed them of money and cellular phones. All those items have not been returned.
The Kenyan Minister for Internal Security, John Michuki, justified the raid on the following day with a proverb: “When you rattle a snake, the snake will bite you.”
Indeed “the snake” may have been rattled lately in that the raid came as Kenyan media exposed a high-level multi-million dollar scam in which senior government ministers were accused of successive embezzlements of public funds. The scam, which stunned the nation for the huge amounts looted, involved a fictitious company named as Anglo-Leasing Company that was awarded several government contracts and paid upfront. It is still a running story.
However, the exposures prompted public pressure against the government leading to the sacking of four government ministers. The heat is still on against Vice President Moody Awori to step aside for facilitation of investigations against him.
I don’t know the real reason for the Standard raid, although I have read arguments that it was triggered by reporting regarding allegations that Kalonzo Musyoka, then a contender for the ODM presidential nomination and now the Vice President, had met secretly with President Kibaki. Regardless, the raid was vigorously condemned by the diplomatic community at that time, including by U.S. Ambassador Mark Bellamy. Just before the December election Bellamy was removed as a delegate from the IRI International Election Observation team after Ranneberger made threats that he would, inter alia, pull funding for the mission at the last minute if Bellamy was included, because he was seen by the Kenyan government as critical.
Happy 4th of July. To celebrate, do something to uphold democratic values.