Kenya’s IEBC announced 18 months ago that it would finally open its vote tally servers to public, but has failed to do so

IEBC unreformed less than two years prior to 2022 General Election“, The Star, Aug. 7, 2020.

2017 election: IEBC shopping for expert to audit its systems“, Daily Nation, Feb. 12, 2019:

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.

CONSULTANT

“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.

But the servers were never opened. 

Kenya Election Preparation: Standing aside on 2013 investigation to raise alarm for 2022

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.

Kenya Election FOIA News: Election Assistance Agreement shows US paid for failed “Results Transmission System” April 13, 2017.

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.

USAID finally sent me a heavily redacted version of the last 2032 pages of their 2013 “Kenya Election and Political Process Strengthening” program file from my 2015 FOIA request May 6, 2020.

Kenya 2013: Redacted reports to USAID suggest the problems with the IEBC acquisition of the Biometric Voter Registration system and the electronic Poll Books fed into the ultimate failure of the USAID-funded IFES Results Transmission System May 14, 2020.

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).

Kenya 2013 election Results Transmission System FOIA IFES USAID

See Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition, July 18, 2018.

So where are we now? Under the gun again:

Big worries about electoral body and 2022 polls“, Sunday Nation, August 9, 2020:

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.

Independence Day, snakes and freedom

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 magazine Embassy described 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.

[Originally published July 4, 2010]

Is it finally Raila’s turn to be Kenya’s president?

[Revised June 26]: Here is an outline of my thinking on a potential Raila Odinga run for President of Kenya as the choice of what is still the informal coalition amongst ODM, Jubilee and most of the larger established “third parties” in 2022:

1) Two years in we still do not know the actual “deal” reflected in the 2018 Kenyatta-Odinga “handshake”. What we do know is that it was concluded very discretely between the two men and their closest personal associates to the exclusion of their “running mates”, parties and coalition partners.

2) The extraordinary discretion has remained intact to the point that as the informal 2022 campaign has proceeded and heated up, public speculation died off and attention shifted to the intermediate issues such of coalition formation, Uhuru’s consolidation of control of Parliament, the upcoming referendum (presumably to set up the execution of the handshake deal).

3) My personal opinion has been over the years that it was a big mistake that the position of Prime Minister “went away” in the “back room” at Lake Naivasha when the Kibaki/PNU and Odinga/ODM leaders set the final terms of the new Constitution to go to referendum in 2010. That was a key fault of the “Wako Draft” that was the raison d’etre for the Orange Democratic Movement from the 2005 referendum in the first place. If the position had not “gone away” Raila could have served his second term as Prime Minister in 2013-17 and the whole UhuRuto anti-ICC “coalition of the killing” scenario could been avoided (which perhaps explains why Kibaki would never let it happen). Hypothetically, if Kenyatta in early 2018 wanted to keep a hand in government and reduce risks to his interests after his term would end in 2022, it would seem relatively straightforward for Odinga to agree to cooperate in fixing that omission in the Constitution in return for support to finally get his turn in State House (even with more circumscribed power).

4) We have had two years to see that the Uhuru-Raila “friendship” is substantive and involves some real level of commitment between the two men. Both have shown uncharacteristic discipline and forbearance toward each other. Perhaps they have some knowledge in common that the rest of us are not directly in on?

5) Raila has been on his best statesman-like behavior, speaking to regional, continental and international issues and avoiding being embarrassed by old friends, like Tanzania’s Magufuli, who have fallen afoul of international opinion, even to the point of public criticism of Tanzania’s COVID response.

6) The main risk to the Kenyatta family “legacy”, the growing business empire, would be a single party strong president at odds with the Kenyattas. Whether or not there was actual intention back in 2012 to follow through on supporting Ruto in 2022-32 (which would only be known by the tightest insiders, the sort of who know the details of the superseding “handshake”) it is now abundantly clear that Ruto has been non-compliant in subordinating himself and would pose unacceptable risk.

7) None of the other candidates of national stature and recognition aside from Raila seem to compare favorably to Ruto as a popular campaigner. Most reached identifiable peaks some years ago and do not have clear command even of their own regions, especially in a devolved system where there are many more centres of patronage and exposure than in years past.

8) While Raila can be characterized as a “perennial candidate” he is widely understood as having actually won in 2007 (see my “War for History” page). He can point to his role as Prime Minister under Kibaki as an example of working in compromise with the dominant Kikuyu elite to secure some benefits for his own opposition constituents and as leading the most significant post-1964 reform effort in passing the 2010 New Constitution as an element of the “peace deal” and “National Accord” arising from his 2007 campaign (and bucking Kibaki to lead defeat of the 2005 “Wako Draft”). His other key “deliverable” was forcing “consultation” by Kibaki in 2011 after the President announced unilateral appointments for Attorney General and Chief Justice of the Supreme Court, leading ultimately to the selection for the Court of international civil society leader and “second liberationist” Willy Mutungu through the Judicial Service Commission in return for Kibaki’s Attorney General choice. While I think it is clear that there should have been a runoff in 2013, Raila accepted the Supreme Court’s controversial affirmation of the 50.07% determination of the then-IEBC. In 2017, he won a reversal at the Supreme Court and stuck to his guns to boycott a referendum without his criteria for reforms and held on through extreme diplomatic pressure to his “People’s President” swearing in while negotiating toward his ultimate deal.

9) Progressives who see a “BBI Referendum” as an elite pact to water down the new constitution (see my last post about the recent writings of Yash Ghai) will face a difficult situation of realpolitik if they align with Ruto to campaign for “No” on a referendum. Ruto was the leader of the “No” campaign against the whole of the reform constitution itself in 2010, and a victory in a “No” campaign in coming months would position him as the populist “giant killer” going into 2022. Much of the 2010 constitution’s “progressivism” has laid dormant for ten years already–do they really expect a better deal from a Ruto succession? Can they realistically hope to start from scratch without an existing voter base to elect some “third force” reformist quickly after a referendum?

10) My sense is that with Uhuru’s support through a consolidated Jubilee, Raila would be generally acceptable to the major external players, the United States and China, along with the UK and France, as well as the other democratic European development donors, Japan and South Korea along with the Gulf States and others. Ruto, on the other hand, seems to be seen as just too crudely corrupt for development donors to warm up to.

11) Commentators are already raising the notion of a risk of election violence for 2022. As in 2013 especially, the idea of affirmative “peace promotion” provides a tremendous advantage for whoever starts out with the most power and disincentivizes open questions about democratic niceties like failed Results Transmission System acquisitions leaving incomplete and contradictory tallies. Ruto has had ten years as Deputy President on the strength of his understood role as the champion of his side of the fighting in the Rift Valley in 2007-08. He has a great deal more to lose now than he did then and fewer, less powerful allies it would seem. The implied threat was a lot more valuable in 2013 when it coincided with the interest of the Kenyattas, also in the dock for the 2008 retribution. The violence worked very effectively for the leaders of both sides in the wake of the stolen election in 2007, so we have to acknowledge that background, but I think the “usual suspects” will have different interests in 2022 and I do not see the implied threat generating the clout for a Ruto presidency that it generated for him as deputy.

12) Conspicuously, I have said nothing about the critical problems faced by most Kenyans today. I have not changed my mind about the performance of the current government (nor are my thoughts here new–I just see possible confirmation as events play out). I am not addressing what should be or could have been as opposed to what I see.

Kenya 2013: Redacted reports to USAID suggest the problems with the IEBC acquisition of the Biometric Voter Registration system and the electronic Poll Books fed into the ultimate failure of the USAID-funded IFES Results Transmission System

Excerpts from the unredacted portions of the Quarterly Reports submitted by CEPPS, the Coalition for Political Party and Process Strengthening, to USAID, released to me last month per my 2015 FOIA request:

The overall goal of this program [USAID Kenya Election and Political Process Strengthening or “KEPPS”] is to improve Kenya’s ability to hold free, fair and peaceful elections through support of the new electoral commission, political parties, civil society and media.

The reports show that key Objectives included to “Strengthen Election Management Body Capacity,” “Enhance Functionality of the Electronic Results Transmission System,” “Further the Transparency and Effectiveness of the Voter Registration Process,” and “Support Credible and Sustainable Monitoring and Observation Efforts”. Vast amounts of the material is redacted on the assertion of alleged FOIA exemption for confidential commercial information submitted by a private person. Redaction is so aggressive as to include in some instances blocking the entire list of Objectives, although the specific items listed above show up elsewhere.

The USAID program was originally funded for $18.5M from the Second Quarter of 2011 through the Second Quarter of 2014 (with another year and roughly $5M added through amendments). The original funding was split among the Consortium for Election and Political Process Strengthening parties: IFES $6M; IRI $1.5M; NDI $11M.

Future Activities:

[Redacted section]

*Assisting the IEBC in procurement of the Electronic Poll Books, specifically technical evaluation of the offers (This was planned for the current quarter but was delayed by IEBC).

*Guiding IEBC in development of procedures and training programs for voter registration workers (Also delayed by IEBC due to delays in procurement of BVR equipment).

*Providing a consultant to serve as assistant to the Chairman of IEBC during the absence of his Personal Assistant who has accepted a fellowship to continue his studies.

The tension among the Objectives involving imbedded support to the IEBC and support for credible monitoring and observation was apparent very early on in the Quarterly Reports.

Planning for the results transmission was derailed to a great extent by the repeated cycles of crisis with regard to the BVR procurement. Meetings scheduled with the IEBC to plan for a system were repeatedly cancelled as a fresh new crisis seemed to occur weekly and even daily.

The risk of failure of the electronic poll books procurement jeopardized the planned use of the poll books to enter results from each polling station, and may necessitate a return to mobile phones. In spite of the increased complexity of conducting elections with six [REDACTED Section].

Objective 5 [of USAID program]: Enhance the functionality of the electronic Results Transmission System.
* Specifications have been developed for using mobile phone handsets as a contingency in case the procurement for electronic poll books fails.

——-

Voter registration timelines announced by the IEBC lapsed repeatedly as a result of delays in the acquisition of BVR kits. Unable to settle on a vendor and a system at the end of August, the IEBC announced that it would instead revert to the manual register for the elections. However, the Cabinet exerted great pressure on the IEBC to retain the use of a BVR system and subsequently took over the tender process, negotiating directly with the Canadian Government for delivery of a BVR system …

The decision of the government to pressure IEBC to proceed with BVR, without regard for delays caused by this decision, and IEBC’s inability to resist that pressure has created a high-risk schedule with no room for slippage in planning for March 4, 2013 elections.

At the same time, IFES was working on “Restoring the eroding levels of public confidence in the integrity and competence of the IEBC” and “Ensuring an efficient and transparent vote count and results transmission system”.

But was not the public ultimately correct to have declining confidence in the integrity and competence of the IEBC, both in the lead up to the vote, and in light of the ultimate failures with both the questionably acquired Poll Books and the Results Transmission System?

———–

Fourth Quarter of 2012:

The Results Transmission System (RTS) solution procurement process was commenced during this Quarter and an in-house RTS was developed and presented to the IEBC as a backup system [REDACTED Section].

Results Transmission: IFES has continued to collaborate closely with the IEBC in the creation of a fully working prototype of the overall Results Transmission System. IFES has also, with approval of the IEBC, agreed to procure a Results Transmission System (RTS) solution and procurement is underway.

———-

For an idea of what was being discussed publicly in the fall of 2012 (when election was originally scheduled) see, i.e.:

August 1, 2012: “Kenyan IEBC drops biometric voter registration after tender controversy“.

October 10, 2012: “Recent Kenya polling points to concern on voter registration, other issues“.

November 27, 2012: “Kenyan diaspora disenfranchised?; Kwamchetsi Makokha raises concern about voter education; IFES seeks consultant“.

The Page of all my posts from the Kenya 2013 election is here.

———-

Ultimately, the Results Transmission System failed in practice. While it was allegedly acquired and deployed with an expectation of reliable performance, it initially displayed unverified and uncertain information that shaped global media reporting of the expected outcome of the eventual vote totals, but was then shut down completely by IEBC Chairman Hassan on the alleged basis of failure due to system overload.

The IEBC went on to announce a final first-round win for the Uhuru Kenyatta and William Ruto ticket with 50.07 percent of the vote in spite of the lack of the electronic system specified in the Constitution and the lack of a demonstrable manual contingent system and the expelling of party agents and election observers from the national tally process, among other irregularities.

Although polling consistently predicted a runoff in the presidential race, the early broadcast showing numbers from the failed RTS with a large and steady margin with well over 50% for the UhuRuto ticket gave Kenyatta and Ruto and the IEBC substantial practical leverage in opposing civil society litigation (which I supported) seeking an injunction to stop Hassan and the IEBC from announcing results without addressing the RTS failure and shutdown.

This leverage carried over into the Supreme Court as Kenyatta and Ruto and the IEBC defended the alleged 50.07% margin. IFES, according to correspondence and reporting provided at least some support services to the IEBC in litigating alongside Kenyatta and Ruto against Odinga and Musyoka as the opposition candidates and a separate election challenge from civil society. So far as I know the role of IFES in acquiring the RTS with US funds did not come up in the litigation, or in the reports of Election Observers, either those supported by CEPPS under this USAID KEPPS program or otherwise.

Kenya High Court Nairobi AFRICOG lawyer Harun Ndubi press conference 2013 election

”USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers” – from 2015 ahead of my FOIA request

Kenya election 2007 ECK Presiding Officer holding ballot with disputed marking

The successful prosecution of Smith & Ouzman, Ltd. and two of its officers by the U.K. Serious Fraud Office for paying bribes to Kenyan election officials to obtain contracts with Kenya’s Independent Electoral and Boundaries Commission (IEBC) should be a wake-up call in Washington.  Smith & Ouzman Chairman Christopher John Smith and Sales and Marketing Director Nicholas Charles Smith were sentenced last week and sentencing of the corporation is upcoming.

Ironically, perhaps, “capacity building” and procurement systems, along with the subsequently abandoned electronic results transmission system, were touted by U.S. Ambassador Ranneberger as features of the U.S. pre-election support in Kenya in 2007:

* “Developing the capacity of the Electoral Commission of Kenya (ECK) lies at the  heart of our strategy.  The USG funded International Foundation for Election Systems (IFES) has been providing support to the ECK since late 2001.  Activities focus on providing appropriate technology for more efficient and transparent elections administration while improving the skills of the ECK technical staff.  This support additionally includes capacity building and technical assistance to support election administration.  Technical assistance includes computerization of the Procurement and Supplies Department, which is responsible for printing and distributing election materials.  Assistance will also support implementation of the ECK’s restructuring plan, strengthening logistics capacity, and accelerating the transmission and display of results.”

From “Lessons for Kenya’s 2012 elections from the truth trickling out about 2007-New Cables From FOIA (Part One)” quoting a December 14, 2007 Ranneberger cable describing U.S. preparations for the Kenyan election.

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.

For a detailed narrative and links on the U.K. Serious Fraud Office case, see Corruption Watch-UK/Trial Monitoring: “Chickens come home to roost: the Smith and Ouzman African bribery case”:

The most serious allegations relate to 7 contracts with the IIEC in Kenya between 2009-2010, worth £1.37 million, where S&O made unusually high commission payments of between 27% and 37% of the contract price. Part of prosecution’s case was that the commission of £380,859 over 18 months paid to the agent, Trevy James Oyombra, was exorbitant, and clearly designed to include payments for officials.

The contracts in Kenya included ballot papers and voter ID cards for By-Elections, 18 million voter registration cards, Referendum ballot papers, and other products relating to elections, such as card pouches, OMR forms, ultraviolet lights. It was a feature of several of these contracts that the S&O subcontracted out the printing work to other companies, in one case to a Chinese company that delivered the goods for less than half the cost of the contract price.

This raises questions about whether S&O were compliant with procurement rules and whether it compromised the security and integrity of the electoral process by subcontracting.

Additionally, on several contracts, S&O delivered significantly less papers than they were contracted to do raising the question of whether the integrity of the electoral process was compromised. It was also a feature of some of these contracts that prices were inflated significantly after award of contract. In all the contracts, the alleged bribes were paid for by the Kenyan tax payers, as the cost of commission was reflected in the contract price.

The specific contracts were as follows:

  • June 2009 – Shinyalu and Bomachoge By-Election. S&O were to provide voter ID cards, and ballot papers – although in the end they provided only 142,000 papers against the 200,000 ordered.
  • January 2010 – 18 million voter registration cards. Once S&O had been awarded the contract they subcontracted the production of half the forms to another company.
  • March 2010 – contract for electors’ card pouches which S&O subcontracted to a Chinese company who delivered them for less than half of the contract price.
  • May-July 2010 – three different By-Election ballot paper contracts (South Mugirango, Matuga and Civil By-Elections) – where the contract price in each case was increased substantially (sometimes by 50%) after award of contract to permit bribes to be paid. The agent advised S&O against providing “chicken” to visitors to their factory in 2010 as there were other officials not from the IIEC who he said they shouldn’t give “the wrong picture” – undermining the defence’s argument that the company was just doing things the “African way”.  Significantly the company again delivered less quantities of ballot papers than were required in each of these three contracts – in the case of the Civic By-Elections some 40,000 less than ordered.
  • July 2010 – a contract to provide 14.6 million Referendum Ballot Papers in which S&O worked out an uplift per ballot paper to factor in the bribery.
  • July 2010 – 1.5 million OMR correction forms and 1000 nomination forms in May.
  • July-December 2010 – ultra violet lights and other Parliamentary and Civil Ballot Papers.

Electoral officials at the IIEC were on several occasions described by the agent, Trevy, as trying to make money before they left the IIEC and went back into government. The agent described the officials at on stage as anxious and “broke”, and “they are desperate for the chicken”. The agent also said that officials told him that S&O needed to “be discrete since all peoples eyes and the government intelligence are watching their every move even on the phone to ensure transparency”.

The Kenyan officials named in court as recipients of payments were as follows: IIEC: Kenneth Karani (chief procurement officer); David Chirchir (IIEC Commissioner); James Oswago (IIEC Chief Electoral Officer); Dena; Kennedy Nyaundi (Commissioner); Gladys Boss Shollei (Deputy CEO); Issack Hassan; Hamida, Tororey and Sang.

Several of these officials are still in government: David Chirchir is current Energy Minister in government, and Issack Hassan is the current Chairman of the Independent Electoral and Boundaries Commission (IEBC) which took over from the IIEC.

The scope of the successfully prosecuted bribes to Kenyan officials, in particular the Kenyan Interim Independent Electoral Commission, now Independent Electoral and Boundaries Commission, was such as to suggest the corruption was not unique by time or geography.

Although USAID, as referenced in the State Department cable quoted above, has provided millions for the operations of the Electoral Commission of Kenya and its successors on a regularized basis since embedding IFES in the Electoral Commission of Kenya, ECK,  in 2001, I do not know whether there was any direct U.S. funding, or U.S. funding through a “basket” administered through UNDP or otherwise, implicated in the specific acquisitions involved in the prosecution.  At the least, given the level of U.S. funding for the Kenyan elections through this time period, the U.S. indirectly underwrote the ability of the Kenyan election officials to corruptly overpay for those things the U.S. was not helping to pay for.

The time period during which the offenses at issue in this U.K. prosecution occurred was 1 November 2006 through 31 December 2010.  Also during this time, for instance, IFES awarded  a more than $3.4M competitive procurement for USAID to Smith & Ouzman for polling booths for Sudan’s National Election Commission for 2010 elections.  Although there may be nothing at all irregular, it is worth noting that Smith & Ouzman has generally been identified as a “printing company” and its election related products and services marketed on that basis.

From a 2008 IFES election materials “buyer’s guide”:

Smith & Ouzman, Limited

Brampton Road
Eastbourne, Sussex BN22 9AH
UNITED KINGDOM
 
Contact: Christopher Smith, Managing Director
 
Tel: +44 1323-52-4000
Toll Free: 0800-298-2911 (UK only)
Fax: +44 1323-52-4024
elections@smith-ouzman.com

Providing the Ballot — Supporting Democracy Worldwide Smith & Ouzman, Limited, has been established for more than 60 years and is the globally trusted name in security printing, providing tailored secure ballot solutions to electoral commissions and authorities from Afghanistan to Zimbabwe, and many places in between. Our team of professional staff has considerable experience in election projects and ensures that ballot papers incorporate devices to protect against electoral fraud and are packed for distribution directly to polling stations. Smith & Ouzman, Limited is the company that provides you with security, integrity and reliability. ● Election Experience Afghanistan, ballot papers; Benin, indelible ink; Botswana, ballot papers; European Union, ballot papers, postal ballots; Ghana, equipment; Kenya, ballot papers, registration forms, voters cards; Kosovo, ballot papers, registration forms, postal ballots; Malawi, ballot papers, UV lamps; Mauritania, ballot papers; Namibia, ballot papers; Nigeria, ballot papers; Somaliland, ballot papers, indelible ink; Tanzania, indelible ink, security envelopes; Uganda, ballot papers, indelible ink; United Kingdom, ballot papers, poll cards, registration forms, postal ballots; Zambia, ballot papers, indelible ink; Zimbabwe, ballot papers.

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Themes of 2022 Kenya presidential campaign reinforced as coronavirus crisis continues

UhuRuto Campaign Ad Kenya 2013

As Kenya’s 2022 presidential race continues in lower public gear due to the global pandemic, today’s Daily Nation has a story headlined “Uhuru Cabinet sweep targets DP Ruto allies” which also reports on competing messaging from the opposing Kenyatta/Odinga/BBI and Ruto camps that has been apparent for at least a few months.

I noticed last year current activity on a Twitter account, “@TheRealRaila”, previously active for less than 30 days in 2017 associated with the very dark propaganda videos of the same title used on behalf of the UhuRuto re-election campaign in 2017:

The account started Tweeting again back in June 2018 after silence from August 2017, and was now being used to promote the Building Bridges Initiative from the Uhuru-Raila “handshake” and “Uhuru’s Big 4 Agenda”. And to attack “evil society” for criticizing the Chinese Single Gauge Railroad deal, to attack Chief Justice David Maraga, and to attack Deputy President Ruto and his cadre.

For example, retweeting this:

See this concluding discussion of the latest campaign posture from today’s Daily Nation piece that leads with talk of upcoming Cabinet and Parliamentary purges:

PROPAGANDA

The reports of the looming changes emerged as apocalyptic videos akin to those that ran against Mr Odinga in the 2017 campaign surfaced online, this time targeting the Number Two man.

The video that has all the hallmarks of the well-planned propaganda campaign that the former prime minister suffered in 2017, asks Kenyans to kick out dishonest leaders.

Images of the deputy president fill the video, although he is not mentioned.

On Sunday, Jubilee Deputy Secretary-General Caleb Kositany, who has become the de facto spokesman for the pro-Ruto camp, said his team was aware of the videos.

“We know who is producing them. It is a group of people supervised by a leading government official and their job description is to discredit William Ruto,” Mr Kositany, who is also the Soy MP, said.

The 2017 anti-Odinga videos and the divisive campaigns that started in 2013 but were escalated five years later were linked to British firm Cambridge Analytica and Harris Media, with the former said to have mined personal information from social media giant Facebook to craft and target personalised messages at voters.

“We just put information into the bloodstream of the internet and then watch it grow, give it a little push every now and again… like a remote control. It has to happen without anyone thinking, ‘that’s propaganda’, because the moment you think ‘that’s propaganda’, the next question is, ‘who’s put that out?’” Mr Alexander Nix from the firm said in the undercover video by Channel 4 TV.

The Ruto team On Sunday castigated the move by the government to reopen restaurants and not churches.

ANTI-VIRUS STRATEGY

Dr Ruto’s activities have stopped due to the directive to close churches. Mr Kositany said places of worship should open, and follow the Covid-19 guidelines.

“It’s not about DP stealing the show in churches, those in charge are more inclined to business, than Godliness,” Mr Kositany said.

Churches, he said, were the “last thing on their mind”. Senate Majority Leader Kipchumba Murkomen questioned the government’s move “to open bars and not churches”.

Kenya-Somalia border conflict at Mandera

[Update 3/5: “Kenya and Somalia form teams to ease tensions” Daily Nation]

[Update 3/4: Democracy Assistance news– Longtime International Republican Institute board member, former Rep. Jim Kolbe, quietly leaves Republican Party, registers as Independent.]

Temperatures have risen between the Federal Government of Somalia and Kenya as they have risen with Somaliland:

Kenya accuses Somalia of ‘unwarranted’ attack on border town–Tensions between Nairobi and Mogadishu soar as they accuse each other of encroaching on border territory.Al Jazeera, March 3:

Temperatures rose further after heavy fighting erupted on Monday in the Somali border town of Bulohawo between Somali government troops and forces from the semi-autonomous region of Jubaland.

Legislators from the nearby Kenyan town of Mandera said the fighting was so intense it caused residents there to flee and take shelter.

A Kenyan government statement condemning “violations of the country’s territorial integrity and sovereignty” appeared to indicate that Somali forces had crossed into Mandera during the battle.

“Foreign soldiers – in flagrant breach and total disregard of international laws and conventions – engaged in aggressive and belligerent activities by harassing and destroying properties of Kenyan citizens living in the border town of Mandera,” it said. 

. . . .

The fighting in Somalia is the latest instance of tensions between Mogadishu and its regional governments.

Jubaland authorities in August accused Mogadishu of interfering in its election and seeking to remove President Ahmed Madobe and get a loyalist in power to increase its control.

Madobe is a key ally of Kenya, which sees Jubaland as a buffer against al-Shabab fighters who have staged several bloody attacks across the border.

Kenya has been further drawn in, as it is accused of harbouring a fugitive Jubaland minister who was arrested by Mogadishu for “serious crimes” but fled from prison in January.

Tensions between the neighbouring countries are also high because of a spat over maritime borders, with possibly lucrative Indian Ocean oil and gas reserves at stake.

. . . .

Kenya urged Somalia’s federal and regional governments to focus on defeating the al-Qaeda-linked al-Shabab.

Observers say the myriad feuds between the fragile government in Mogadishu and its federal states is a major obstacle to fighting the armed group.

On Somaliland and Somalia tensions, I will quote the conclusion of an editorial from Michael Rubin of the American Enterprise Institute titled “Farmajo fights separatism the wrong way” from back in January:

Somalia’s dream of unity is understandable and it can be compelling, just as those supporting Somaliland separatism can find their case persuasive. But, what Farmajo forgets or does not understand is that if Somalia is going to reunite with Somaliland, it must perform better than Somaliland. It must be more stable, more secure, more democratic, and less corrupt. It must have a better economy that will be a regional envy. Somalia cannot force Somaliland into its fold militarily; it is not strong enough and occupying Somaliland will never bring peace. Militaristic rhetoric from Farmajo will only exacerbate mistrust born from his relative Siad Barre’s rule and the human rights abuses he perpetrated in Somaliland. What neither Farmajo nor Yamamoto understand is that economic strangulation also will not compel Somaliland to rejoin Somalia. Indeed, it is hard to imagine Hargeisa under Mogadishu’s control when even Mogadishu is not under Mogadishu’s control.

Somali nationalists can cast aspersions toward Somaliland nationalists, and they can troll on social media. Farmajo’s advisors and his press spokesmen can insult from an official podium before they retreat into armored cars and locked-down compounds, or take official planes to Doha and Istanbul. But none of their tactics will achieve their goals; indeed, they only make them harder to attain. If Somali nationalists want to restore Somali greatness, there is no substitute for reform. Simply put, for there to be unity, Somalia must be better than Somaliland rather than try to suffocate Somaliland.

East Africa roundup for February: Rwanda, South Sudan, Kenya and Burundi

A roundup of East Africa democracy news and opinion:

Julian Hattem in World Politics Review explains that “Rwanda’s Opposition is Disappearing Along With Kagame’s Credibility“, keyed off the death of popular gospel singer Kizito Mihigo in custody.

This is a good article and I recommend it (while I have to note my pet peeve that it indulges as so many accounts do in the Kagame mythology that the RPF “marched in from Uganda to end the genocide” rather than noting that they came across the border and began fighting years earlier than their march into Kigale in 1994.)

Is there a day coming where Americans notice the problem even of repression of religious freedom in Rwanda in spite of the lionization of Kagame and his willingness to transact with foreigners on terms not available internally?

In South Sudan, a formal unity government was announced to meet the extended February 22 deadline. Most important details are either unresolved, or to be executed from a dead start, but this was a necessary step for hope for deeper progress, especially for one day when the people are free of their current warlord leaders. Riek Machar upon being re-instated as First Vice President was accordingly released from IGAD “house arrest”.

Update–Here is a report from the International Crisis Group: “A Major Step Toward Ending South Sudan’s Civil War

Kudos are in order for the diplomatic efforts to step up pressure on both sides, and in particular on Salva Kiir who had the most power and leverage through defacto control of the government. It seems that the State Department under Assistant Secretary Tibor Nagy in particular engaged and showed leadership. The US has a unique diplomatic responsibility and opportunity in South Sudan so it is encouraging to see us step up to the plate.

Not sure what to make of this article in which Kalonzo Musyoka and the reporter posit a leading role for himself as Kenya’s envoy: “Kalonzo: How we brokered Kiir Machar peace pact“:

Former Vice-President Kalonzo Musyoka returned to the country on Sunday from Juba after accomplishing a delicate peace deal that saw South Sudan President Salva Kiir and former rebel leader Riek Machar form a unity government.

The negotiators of the peace agreement heavily relied on Mr Musyoka to achieve the long-delayed process towards ending a six-year civil war that has led to loss of thousands of lives.

It is very much true that (1) Kalonzo was a Kenyan insider under Moi and then Kibaki’s Foreign Minister on though the negotiation of the CPA in 2005; (2) Kenya is inevitably of importance in South Sudanese power struggles because of the role of Nairobi as at least the “back office” and “capitol of capital” for South Sudanese kingpins; (3) Gideon Moi (as reported by The Sentry) and certainly other leading Kenyan figures are major players in financial dealings at issue in South Sudan; (4) the U.S. as the leading international power involved in the nascent building of a South Sudanese nation is closest to Kenya and to Uhuru Kenyatta in particular among the IGAD members and leaders, so Kalonzo in representing Kenya and Uhuru presumably has standing with the US in addition to his own background with the negotiations.

Remember that after his deal with Mwai Kibaki during the 2007 presidential campaign to stay in the race and be appointed Vice President, Kalonzo was trusted enough by Kibaki and his men to represent them in Washington during the Post Election Violence in lobbying against a “unity government” with Raila. At that time in early 2008 Uhuru was also in Kibaki’s initial cabinet Minister of Local Government, as he had been under Moi in 2000-2002, administering Nairobi issues in those pre-devolution days.

Speaking of Nairobi, Uhuru and devolution, the purported “sign over” of governmental powers from Nairobi Governor Sonko, to the Kenyatta Administration, while seemingly suspended from official action by court order and facing impeachment and criminal charges, is the big new story.

According to The Standard, “Human Rights Activist Okiya Omtatah and Lawyer Robbin Murimi filed separate applications at the High Court Nairobi challenging the move.”

Uhuru Park

Close behind is the damning latest round of leaks of secret details of corruption and dereliction in the Kenya Railways/Standard Gauge Railroad saga.

Otherwise, as it has become more clear that the BBI is generating inevitable controversy, Ambassador McCarter has tempered his language of American support to emphasize a robust debate with wananchi involvement on “which provisions to enact”. At the same time, three months now since the release of the original BBI Report and almost two years after the Handshake, it remains unclear (or undisclosed) exactly what the “deal” is.

Meanwhile, elections are coming up fast in Burundi on May 20. For the latest on the ongoing pre-election violence, see The New Humanitarian: “Killings, arrests as elections draw near in Burundi.

The EAC will send Observers since Burundi is a member:

EAC Secretary General Ambassador Liberat Mfumukeko informed the UN delegation that the EAC observes elections within the context of the National Constitutions of the Partner States.

He assured the delegation that preparations were underway for the launch of a longterm EAC Observer Mission that will monitor the Burundi electoral process in its entirety, as well as a short-term EAC Observer Mission that will monitor the polling only.

“I am confident that the peaceful spirit we have experienced during the party nominations will continue during and after elections,” said the secretary general.

“The EAC is calling on all the people of Burundi to sidestep violence, regardless of the situation,” he added. In 2018, Burundi promulgated a new Constitution.

Grand railroad corruption: Kenya’s Daily Nation drops expose of grossly inflated pricing and alarming details from “secret” SGR contracts

A vital “must read” from the Daily Nation confirms that in spite of Kenyan president Uhuru Kenyatta’s promise to release the contracts for the truncated Standard Gauge Railroad project, the Government of Kenya has been withholding the documents concerned about meeting public records obligations. It is said that Kenya signed the undertakings with Chinese state-owned corporations rather than the Chinese State as such, and that the documents include secrecy provisions that the lawyers are interpreting to conflict with Kenyan law as to the Governments obligations to its own citizens for public contracting.

The story details item after item of hugely inflated prices for components such as generators, supplies, machinery and equipment:

This explains how Kenya ended up paying two times more for a diesel train than what Tanzania negotiated for an electric train. A comparison of the costs shows that Tanzania is building an electric rail at half the price of Kenya’s diesel SGR line.

TANZANIA’S FASTER

At $1.92 billion, which translates to about Sh192 billion at current exchange rates, for the 422 kilometres, Tanzania’s line is not just cheaper; being electric, it’s designed to support a maximum speed of 160km/hour for passenger trains and 120km/hour for freight.

This pales in comparison to Kenya’s line, whose passenger trains have a maximum speed of 120km/hour with freight hauliers doing 80km/hour at best.

Kenya opted for diesel-powered engine that can be upgraded into electric in future.

It is the results of this greed and negligence that taxpayers are now paying for.

OPERATION COSTS

Currently, the revenues generated from the passenger and cargo services on the track cannot meet the operation costs, estimated at Sh1.5 billion a month against average sales of only Sh841 million.

Meanwhile, Kenyans transporters who have allegedly been hurt by Kenyan restrictions intended to forcibly subsidize the non-competitive costs of the Chinese-operated SGR, are seeking the contracts in court. Likewise, the civil society coalition Okoa Mombasa has filed a formal records request as a precursor to a suit if the documents continue to be withheld.

Readers may remember previous reporting of a leaked Auditor General documents indicating that Chinese firms may have been given a security interest in Kenya Port Authority assets and property to secure the loans for these inflated costs. From Maritime Executive in December 2018:

Kenya runs the risk of losing control of the Port of Mombasa if it should default on loans from state financial institution China Exim Bank, according to a new report from Kenya’s auditor general. The terms of a $2.3 billion loan for Kenya Railways Corporation (KRC) specify that the port’s assets are collateral, and they are not protected by Kenya’s sovereign immunity due to a waiver in the contract. 

KRC accepted the multi-billion-dollar loan in order to build the Mombasa-Nairobi standard gauge railway (SGR), with construction services provided by China Roads and Bridges Corporation (CRBC), a division of state-owned conglomerate China Communications Construction Company (CCCC).

“The payment arrangement agreement substantively means that the Authority’s revenue would be used to pay the Government of Kenya’s debt to China Exim bank if the minimum volumes required for [rail] consignment are not met,” auditor F.T. Kimani wrote. “The China Exim bank would become a principle over KPA if KRC defaults in its obligations.”

In addition, any dispute with China Exim Bank would be handled through an arbitration process in China, not in Kenyan courts. The auditor general expressed concern that the port authority had not disclosed these arrangements in its financial statements. 

The Auditor General’s term expired before publication of a final report and has been left vacant, conveniently for freedom of action and ability to avoid disclosure by Kenya’s political officials.

The more information that comes to light the more it would appear that the uneconomical nature of the “white elephant” megaproject was baked in from early stages and does not look to be readily resolvable without exterior finance, renegotiation, write down or other intervention.

Meanwhile, The Star covers a report by the Tax Justice Network that Kenya’s financial sector is well designed to hide corruption as the second most secretive in Africa:

Kenya’s financial sector is the among most secretive globally, according to a new report  by Tax Justice Network.

The sector has been ranked the second most rigid in Africa after Algeria and among the top 30 in the world in the latest Financial Secrecy Index of 2020.

The annual index by Tax Justice Network (TJN) has scored Kenya’s secrecy rate at 76 per cent, meaning the country is a fertile market to stash ill-gotten private financial wealth and other illicit financial flows (IFFs).