Raila on the Kenyan elections at CSIS

Catch the webcast, live Thursday morning 9:30-11:00 EST:

“Raila Odinga on the Kenyan Elections” with Amb. Mark Bellamy at the Center for Strategic and International Studies in Washington.

The link will also take you to the video for CSIS Africa programs addressing the Kenyan election in June, July, August and September.

Meanwhile, the AP has a story out this afternoon widely re-published in American newspapers: “After Kenyan vote drama, successionist talk hits the mainstream“.

The succession concern may likely have resonance in Washington given U.S. interests, although my sense is that the economic boycotts are the most salient message in Nairobi.  During the PEV period following the corrupted 2007 election, ODM backed off on threats of such economic boycotts which seemed risky as unprecedented and perhaps perceived to be “over the top”.

Vogue gives us “Three Nairobi Fitness Excursions Prove There’s Plenty of Life Beyond the Safari” for Americans who want to play around the city after their “humanitarian” trip to Kakamega from the U.S.

And the Carter Center has released a statement on the October 26 re-vote mirroring the State Department’s call for “national dialogue”: “Repeat poll polarized Kenya: Carter Center” headlined the Daily Nation.

Update: A Thursday story in The Star reports that  “British Army may pull out of Kenya, decision by end of month“.  The issue is KDF approval for leases of private land in Laikipia, the established practice, as opposed to a restriction to using only Kenyan government property.

For a good overview, see “The Kenya Election Crisis, Explained” at UNDispatch         by Kimberly Curtis.

Must Kenyans bear a “model” cross?

In his sermon, Archbishop Welby said reconciliation was the only way that the country could retain its status as a model nation for Africa, and that disagreements can only be sorted out through understanding.

“Kenya has been a good model of peace and reconciliation across Africa,” he said. “Reconciliation is a supreme gift of Jesus, and is so costly it caused Jesus to die on the cross.”

(From the Sunday Nation, Talks in the air as Uhuru, Raila meet” featuring the visit of the Archbishop of Canterbury to Nairobi.)

As a Christian, I embrace the message of the Archbishop on the value and centrality of reconciliation for Kenyans, as for the rest of us. I am just not sure that the purpose or motivation needs to involve further taking up the burden of being a “model nation” as that term has been used. Kenyans need reconciliation among themselves, for themselves–really to become a nation in a more meaningful sense than they are now.

The history and immediate circumstances of Kenya are rather specific. The spiritual and temporal challenges of reconciliation in Kenya certainly have a fair bit in common with those faced by Americans. I am sure others elsewhere, in places that I have not lived, including in various other nations on the African continent have substantial commonality in their experiences, needs and circumstances.

It is natural–almost reflexive and inevitable perhaps–for leaders from the UK to call on Kenya’s leaders to bear the burdens of being exemplars for the region. And are Kenya’s elitemost not to able to be motivated by the extra status of ruling the country that is recognized as a sort of head boy for the whole neighborhood? To me this sort of thinking has been a fixture of Anglo American establishment orthodoxy toward Kenya and effectively served the interests of Anglo American foreign policy as the current relationships were worked out during the 1950s, ’60s and ’70s. While it has arguably worked out better in some important respects for quite a few Kenyans than many possible alternatives might have, it is decidely shopworn and insufficient now for the future.

The cross of being a “model nation” has always been in another sense the burden borne by most Kenyans in carrying on their backs in parade profoundly corrupt and frankly greedy “prefects”. Kenyans have more valid dreams than this. In reality the Kenya of Kenyatta/Moi/Kibaki/Kenyatta (and the rest of the usual immune suspects) is not something that could (or should) be replicated anywhere else, and it is not even a viable model for Kenya on into the 21st Century. There are too many more people without jobs or enough to eat, with many many more coming.

And let us be clear that a specific cost of being used as a “model” by outsiders: truth.  One of the main reasons Kenyan elections are so bad but so uniquely expensive is that we pretend that they are better than they are, to serve the idee fixe of the model.  We still cannot come to grips with talking openly among ourselves even about our role in the disaster of 2007, to go along with our role in mitigating the crisis in 2008-10.

See my post from August 2012: Didn’t we learn from the disaster in 2007? Kenya does not need to be anyone’s “model” anything; it does need truth in it’s election.

The Cold War is long over and the Anglo American orientation to Kenya as it evolved up into the 1970s might well be due for a serious refresh, especially with more aggressive Chinese and French mercantilism offering competing opportunities for Kenya’s rentier class and Western technology, along with global oil proceeds routed through the Gulf Monarchies greatly expanding the reach and toxicity of militarized jihadist ideology since the early days of al Qaeda activity in East Africa more than twenty years ago now.

Regardless, the United States and the United Kingdom are not going to be leading the reconciliation of Kenyans, much less any of the other outside influencers.  We can provide moral support or detract from opportunities by supporting an inadequate status quo.

In the case of the United States we all know enough now about Donald Trump to know that America will not have anything along the lines of foreign policy in any traditional sense during his presidency.  This means overall inertia within the military in an expanding role and within the bureaucracy in other areas in a receding role.  It also means a greater latitude for non-state actors such as the aggressively “libertarian” billionaires who helped make Trump president, such as the eccentric quant fund mogul Robert Mercer who will be of note to Kenyans through his role as an investor in Cambridge Analytica of Kenyatta’s 2013 and 2017 campaigns.

Trump has explained that it is not necessary to fill many of the policy and other positions in the State Department because he himself “is the one that matters” for policy.  Presumably in the case of a crisis in Kenya cataclysmic enough to require decisions on his part regarding U.S. policy, Trump would be inclined to rely on the Pentagon.  Otherwise perhaps he would also reach out to friends who have business interests as he referred to in his lunch with African leaders alongside the UN General Assembly.

Trump and his cronies aside, if Kenyans are able to find ways to reconcile and seek specific support from the United States, they will find many Americans including even within Congress who will wish to be of assistance for the reasons that we otherwise wish to help with the needs of Kenyans for food and medicine, for instance.

In first instance , however, Kenyans are in the same boat as everyone else and have to decide how they value reconciliation and love frankly, versus greed, power, hate, heirarchy and other alternative priorities.

Kenya cannot have a free and fair presidential election without consent of the President

This is the underlying reality that I have routinely pointed out privately as well as mentioned here.  No president in Kenya has ever lost a re-election.  Uhuru Kenyatta had a decision to make as to whether he was willing take a risk of losing at the polls or not. (In 2007 it was clear, as seen with hindsight, that Mwai Kibaki was not willing to take that risk.  He controlled the ECK accordingly.)

Peace Wall Kibera Nairobi Kenya 2008

Under the new Constitution adopted by virtue of the 2008 Post Election Violence settlement and with effectuation of some reform, the new Supreme Court to almost everyone’s surprise held its independence and applied the law to find that the IEBC did not meet the minimum requirements of the law in declaring the President re-elected without full and reliable results under required proceedures.  Even in this context the Court was careful not to blame the President or the Executive branch for the use of state resources and the underlying irregularities and illegalities that were seemingly born as orphans within the IEBC.

Since the Supreme Court’s ruling the Court and the Judiciary have been under attack from the Executive just as the IEBC has been under attack by the opposition.  On balance, the international diplomatic community re-iterated its ongoing multi-year endorsement of the IEBC, consistent with the “Preliminary Statements” of the major international election observation missions in 2013 and on August 10, 2017.  On balance, the international diplomatic community has said little about protecting and preserving the hard won independence of the Judiciary.

Today, the Supreme Court fell.  The Interior Minister signaled an intent to order that today be a public holiday (“election day eve”?) and the driver of the Deputy Chief Justice was shot while running an errand in the Justice’s car.  When the Court convened to hear and decide the urgent matter of whether the presidential election nullified from August 8 could be conducted by the IEBC tomorrow in light of the Court’s previous ruling, only the Chief Justice and one associate showed up.

With a majority of the Supreme Court “missing in action” the Chief Justice determined that no quorum existed, the hearing could not be held so that so that there is no authority to determine the law separate from the President who has declared throughout that his one “irreducible minimum” requirement is that the presidential vote be held on October 26.

Then the High Court ruled on a separate challenge—reminiscent of Judge Leonola’s ruling in 2013 on AfriCOG’s petition to enjoin the vote tally by the IEBC after the “failure” of the results transmission system—that jurisdiction to challenge actions involving the presidential election rests only at the quorumless Supreme Court.

It is clear to all that the IEBC is not ready, and belated calls have been coming to postpone the vote but the bet on the IEBC was already placed and when the diplomatic community chose to leave it down in the face of the dramatic defection of Roselyne Akombe, whose name is now usually “one commissioner”,  the game may be over on that front.

I do not assume that writ large this outcome in Kenya constitutes the fruition of or is consistently underwritten by some coherent foreign policy agenda of the United States and/or the UK or other Western countries that have supported the ECK/IIEC/IEBC over the past 15 years.  This is the third U.S. administration to be involved in this scenario and going back even through the entirety of Kenya’s history the persistent thread is that we support the President (whether we like or respect him).

Uhuru Kenyatta has specific relationships of various sorts among certain American elites, but that is a very different—and perhaps contradictory—thing from the idea that Kenyatta’s behavior supports specific foreign policy objectives of the United States.  The great strength of the United States as a relatively open, chaotic society with turnover and diffusion of power is that much of what is often seen as “policy” from more repressive vantage points is more like “stuff that happens” seen from within our system.

[Nonetheless, I will have more detailed and informed opinions about the August elections when I finally get from USAID documents I requested in 2015 about our support for the IEBC in 2013.]

 

Don’t be confused: preparations for Kenya’s failed August election election were controlled by Kenya’s ousted “Chickengate” IEBC and its CEO and staff with support of international “partners”

From this blog late last year:

Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.

While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.  

Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)

Update: see Roselyne Akombe’s interview in the Saturday Nation, Credible Oct. 26 election not possible: Akombe” 

Western envoys in Kenya decry difficult pre-election environment, but say too late for substantial reforms, leaving no obvious way forward

[Update: Here is an Oct. 3 Daily Nation story on the status of negotiations and demands among Kenyan politicians and Western diplomats: “Envoys threaten travel bans to politicians derailing poll plans“.  The International Crisis Group meanwhile offers a good brief: “How to have a credible, peaceful presidential election in Kenya“.

The independent European Union Election Observation Mission issued a new 3 October statement saying “decisive improvements are still achievable if Kenyans come together in a constructive manner” while decrying excessive demands and proposed law changes and with confrontation from both sides.

And to refresh the memories of the envoys and candidates here are the September 14 recommendations of the European Union Election Observation Mission for reforms ahead of the election re-run.]

It is in fact very unfortunate that time has been running hard against the 60 day deadline for the “fresh election” necessitated by the failure of Kenya’s IEBC (significantly supported by the United States and, at least indirectly through the UNDP so-called “basket funding”, other donors) to conduct a lawful presidential election on August 8 as determined by the Supreme Court of Kenya.

With the passage of time things like the then-shocking torture/murder of acting IEBC ICT head on the eve of the election are no longer mentioned in such statements as today’s from the envoy group.  Too long ago that murder (passing 60 days) and with no sign of progress or serious effort to solve the case we should of course “accept and move on” that it was simply an unfortunate coincidence (or at most one of those political murders that happen periodically in Kenya that are agreed to be ignored so that we don’t have to face the darker realitity of how “democracy” really works in such a pretty country).  Of no relevance to the August 8 election or its rerun in the hands of the his suspened predecessor who got his job back when Msando was killed even though he had been earlier suspended as ICT director for refusing to cooperate in an audit.

Rather it is noted today that it is “too late” to replace staff hired under the removed Issack Hassan Chickengate regime or otherwise substantially reform the IEBC.

Longstanding CEO Ezra Chiloba doubled-down last week and signed (reportedly) a new (amendment??) with the controversially sole-sourced ICT vendor OT Morpho now owned by a US-based fund and a fund of the Government of France.  Pretty much an “in your face” gesture toward reformers if true. [Update 4/17: The IEBC twitter feed has reported that the OT Morpho contract will be released – I gather this is confirmation of the reported new agreement but we shall see.]

Either the donors have lost all significant influence, if they had any, toward transparency and trust building at the IEBC or they are really gambling hard on selling whatever the IEBC in existing form–without meaningful reform–will offer up on October 26 and the seven days thereafter.

As for me, I think this is a bad gamble, both in terms of odds and because the known character of the other players at the table.

As an American who was involved in the 2007 fiasco from part-way inside and witnessed 2013, I would like to see my Government cease to help underwrite this IEBC as a matter of our own integrity and of our long term ability to provide some future positive influence to the future development of independent democratic institutions in Kenya.

The American dollars supporting through USAID this IEBC would be much better spent on urgent humanitarian needs (see the UNDP’s call for additional funds of more than $100M for Kenya famine relief).

It may be that NASA will throw in the towel and agree to go along to run in a “not so fresh” election without IEBC reforms.  That is for NASA to decide.  I just do not want my Government to interfere in that decisionmaking process unless we are willing to provide some independent assurance of transparency and support for fairness to all Kenyans (not just NASA) that the Government of Kenya cannot be expected to agree to unless we are willing to stand up to them in a way that I have not seen from us in 2007 or 2013.

“Sitting on” the embargoed USAID-funded IRI exit poll indicating opposition win in Kenya 2007 election, I wished someone would subpoena me

 

A Kenyan blogger wrote in early 2008 that  I “should be” subpoenaed after I was reported in Slate magazine as “sitting on” the embargoed USAID-funded IRI exit poll. I would have welcomed it. Sadly no subpoena came.  No one approached me except from the media as I hoped that the decision would be made in Washington to end the embargo as Joel Barkan and I urged.

The exit poll was publicly released by the the University of California San Diego research team at an event at CSIS in Washington only in July 2008 after the six month publicity restriction in their consulting contract with IRI. [ed. note: Remember it was then released in August by IRI.]

By that time, it mattered  for “the war for history” as to whether the election had actually been stolen or not, but had no real time impact in that Kibaki’s second full term was well underway.  The “Kreigler Commission” reporting to President Kibaki was staying off the question of what really happened to the presidential tally at the ECK.

Lessons for today, in time to matter?

What if vital information about what happened with the presidential tally is in the hands of people working for the donor-funded election assistance operations who wish they could provide that information and answer the vital questions?

FREE, FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant

Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.

A classic example of why Kenyans are frustrated with the mix of international Election Observers and Media

Kenya 2007 election Kibaki Tena Kazi iendelee re-election

Can John Kerry help stop Kenya from slipping into Post-Election Violence Again?“, Newsweek, 10 Aug 2017:

Beyond the “Western patrician savior” headline:

. . . .

I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.

 The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.

But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.

Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.

Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.

Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.

Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)

Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.)  Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month).  No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting.  No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.

No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.

Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.

Kenya Election Trump White House congratulates Kenyatta on fair and transpaent re-election

Kenya’s presidential election petition – it was clear IEBC did not follow the law, even before Supreme Court Registrar showed serious skulldugery with ICT

Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):

Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.

It is simply not the same thing at all in my opinion.

Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.

Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)

I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.

People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.

Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”

Kenya Election: How IEBC CEO explained what was legally required for electronic Results Transmission and how KIEMS was to meet requirement

IEBC’s high-tech system to guard against ballot stuffingThe Standard July 22, 2017

The Independent Electoral and Boundaries Commission (IEBC) has assured that the integrity of the August 8 election has been guaranteed through tamper-proof technology.

The Kenya Integrated Elections Management Systems (KIEMS) has unique features that will make double voting, ballot stuffing, and irreconcilable voting patterns impossible. IEBC is already preparing to deploy 45,000 KIEMS kits to be used in all the 40,883 polling stations across the country.

Every polling station has been allocated a Kit with a maximum number of 700 voters depending on the size of the polling centre. By implication, voters in a polling station cannot exceed the allocated number.

The KIEMS technology has two main functions in this election. The first is biometric identification of voters on the election day and results transmission after counting the votes.

The Commission has made it mandatory for all voters to be identified biometrically to close the doors for possibility of resurrection of dead voters.

IEBC Chief executive officer Ezra Chiloba said the Commission has invested heavily in technology and can guarantee successful transmission of election results.

“We have no choice really. The law already demands of us to electronically transmit presidential results from the polling station to the tallying centres,” he said.

After counting of results, the presiding officers in the presence of party agents are expected to type the total number of votes garnered by each candidate into the kit.

The kit aggregates the results automatically and the total number of votes cast for all the candidates is recorded. In cases where the number of voters exceeds the total number of registered voters, the kits shall automatically reject the results. This measure, according to the Commission, effectively makes ballot stuffing impossible.

As an additional measure to guarantee the integrity of elections results, the presiding officer shall scan Form 34A using the KIEMS kit. The Form 34A is signed by both the presiding officer and party agents. Once scanned, the presiding officer shall, together with the text results, send the same to the national tallying centre and constituency tallying centres.

The kit shall equally report turnout trends periodically throughout the day. With this kind of monitoring, the Commission says, ability to identify abnormal voting patterns is guaranteed.

At the end of the voting, said Mr Chiloba, the presiding officers in the presence of party agents are required to reconcile the number of voters recorded by KIEMS as having voted and the number of ballot papers issued.

“We have two procedures that minimise the risk of ballot stuffing. One, the voter turnout as recorded by KIEMS. Two, the ballot papers reconciliation that happens at the end of voting. The number of ballots papers issued and the records of voter turnout as registered by KIEMS should be able to reconcile,” he said.

The Commission contends that once the presiding officer has pressed the “Submit” button, the results cannot be changed by anyone.

Using an encrypted format, the results shall then be transmitted to the tallying centres through a secure network in real-time. The public will be able to view the results online. Similarly, Media will have a dedicated connection to access real-time results as well.

According to ICT sources within the commission, the KIEMS have a unique in-built audit trail. The in-build audit trail enables the commission to collect all the kits and to retrieve records from the SD cards for any analysis at the end of voting. This in-built accountability tools implies that the process of voting can be subjected to objective scrutiny at any point in time after voting.
.  .  .  .

Clearly, much of what Chiloba and the IEBC described here just over two weeks before the election did not actually happen after the votes were cast and counted on election day.

Why?  Well, much of the explanation likely rests on the new information disclosed in the Registrar’s reports on the Forms 34A and Forms 34B and the IEBC ICT review in the Supreme Court litigation.  Other things were going on within the process than described.