Ugandan People’s Defense Forces raid on opposition candidate Bobi Wine’s Headquarters puts US in awkward position

The UPDF has raided the political headquarters of Ugandan opposition MP and presidential candidate Bobi Wine, per Reuters and other news reports.

Wine, whose real name is Robert Kyagulanyi, told Reuters dozens of police and soldiers barged into the offices of his National Unity Platform (NUP) party in Kamwokya, a suburb of the Ugandan capital Kampala

The security personnel, he said, seized documents containing signatures from supporters that his party had collected to back his nomination, as well as 23 million shillings ($6,207.83).

We have Americans working to support Bobi Wine, and presumably Museveni as well, in the campaigns, and Americans working through USAID to support the democratic process. Uganda has always been a challenging environment on democratization–one in which our diplomats face an extra helping of competing priorities.

Uganda has never had a peaceful transition of power but remains more stable under Museveni’s rule than at most times prior to his military ascension in 1986. Museveni is a critic of the West who generally does business with the United States and generally facilitates our humanitarian and development aid programs, while doing business as well with China, North Korea, the former Gaddafi regime in Libya and other non-democratic actors.

Over the years that I have been informally watching (since 2008 really) we have offered occasional but muted criticism of Museveni’s disappointing performance on “deepening democracy”. See, i.e., Uganda: Retiring US Ambassador “stings Museveni for overstaying in power” but emphasizes support for Uganda’s role in regional stability”.

Uganda billboard Museveni and Gaddafi

The use of the Ugandan military is used in the domestic election process against democratic norms, however, prevents a particular problem because of the strong military-military relationship.

Ten years ago, ahead of Uganda’s 2011 election, I wrote a blog post entitled “Democracy and Competing Objectives: We need you to back us up”:

I also had a senior military officer, a general, say to me, “It really doesn’t help us when you all don’t come out and criticize sort of half-hearted democratic elections. You tell us ‘Democracy, Democracy’; then you accept when we don’t have fully up to a minimal level of standard, because you’ve got presumably some other competing objective there that mitigates against that, because otherwise we don’t understand the point of continuing to strive for that standard. We need you to back us up and to back up our societies.”

This was Kate Almquist, now Senior Fellow for Security and Development at the Africa Center for Strategic Studies, at a Military Strategy Forum on AFRICOM at CSIS in July (2010). Ms. Almquist was Assistant Director for Africa at USAID from May 2007 to 2009. She is speaking on a panel, relating her recent discussions with senior African military leaders at the Africa Center in response to a question about “competing objectives” regarding U.S. “strategic partners” including Rwanda, Uganda and Ethiopia, and “how do we know U.S. military support is not increasing autocratic tendencies and not decreasing democratic space?”

Since this event we’ve had a substandard election season in Rwanda–as well as the leak of a draft UN report using the term genocide in reference to Rwandan activity in the DRC. In Uganda, Museveni has announced formally that he is running for re-election, while continuing to refuse action to relinquish the unilateral appointment of the Electoral Commission. At the same time, Rwanda is threatening to pull its “peacekeeping” soldiers out of Darfur, and Uganda is offering an additional 10,000 soldiers to be “peacekeepers” in Somalia. The conundrums continue.

Here is a link to the audio and video from CSIS (also available on podcast). This discussion starts at 32:50 in the panel following General Ward’s speech.

Kenya Pre-Election Violence: with only 22 months until vote, were deadly clashes temporarily delayed by BBI process? What is next?

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.

Uraia- Because Kenyans Have Rights

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.

France was a conspicuous diplomatic critic of the 2007 election theft among the European democracies but seems to have adapted to the role of election hardware and software supplier to the Election Commission since 2012 and become a major investor over the years since the partially State-owned Danone food conglomerate purchased forty percent of the Kenyatta family’s Brookside Dairies business in 2014.

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.

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.

Extended: Let me note that NDI will be releasing public opinion polling about attitudes towards elections with the Uraia Trust by Zoom on Wednesday, October 7. (Register through the link.). Regular readers will remember that what to release from the USAID public opinion survey programs conducted by IRI in 2002-07 and NDI since has been a matter of “discussion” in some situations in the past. Public release is in general what is required by the stated purposes of these USAID democracy assistance programs vis what the State Department might do for itself. So let me recognize this positive step.

Addendum:

One of the most striking symbols of French financial penetration was the acquisition last year by one of France’s richest families of a major stake in Twiga Foods which aspires to be Africa’s biggest grocery supplier after being co-founded in Nairobi by a young American entrepreneur as a “social enterprise” with support from USAID and subsequent “philanthrocapital” and IFC investment. The dollars are inconsequential relative to the infrastructure deals but if this business does ultimately succeed in its ambitions the French will be indebted to American aid and we may have missed an opportunity to help finance and support African small business.

“Fraud”, “Rigging” and “Falsifying” are the words for Kenya’s 2007 presidential election, as opposed to “disputed“

Kenya election vote counting Westlands Nairobi

How to describe Kenya’s 2007 presidential vote in concise language more than a dozen years later for comparative purposes?

Here, from the Executive Summary of the USAID-funded International Election Observation Mission report from the International Republican Institute, published and released in July 2008:

Following the transfer of the ballot boxes, it was reported that in some areas constituency-level officials from the Electoral Commission of Kenya (ECK) turned off their cells phones, and many suspected these officials of manipulating the results of the presidential poll. In addition, the ECK in Nairobi refused to allow observers into tallying areas throughout the final process, and the government instituted a media blackout until the sudden announcement of President Kibaki as the winner of the poll, which furthered suspicions of malfeasance.

Although IRI’s observation mission consisted of only short-term observers who were unable to be present through all of the vote- tallying at the constituency level, IRI has reason to believe that electoral fraud took place and condemns that fraud. The rigging and falsifying of official documentation constitutes a betrayal of the majority of the Kenyan people who peacefully and patiently waited in long lines to vote on December 27.

The Institute also condemns the tragic loss of life and property that characterized the post-election period. It has been estimated that the violence claimed more than 1,500 lives, displaced close to 600,000 people and caused millions of dollars in property destruction and lost revenue and wages.1 At the time of printing this report the mediation efforts have led to a tentative power- sharing deal, but it remains to be seen if the government will in fact honor the agreement signed by President Mwai Kibaki and Raila Odinga on February 28, 2008 (emphasis added).

See “The War for History: Was Kenya’s 2007 election stolen or only “perceived to be” stolen?”:

8. I think it is important to look at the exit poll situation in the context of IRI’s Election Observation Mission Final Report which has now been published as a printed booklet (they FedEx’d me a copy with a cover letter from Lorne in mid-July). The report, which I had the opportunity to provide input on, working with my staff in Nairobi on early drafting and through later editorial input on into April when I was doing follow-up work such as the internal exit poll memo of 4-20 that I sent you, is very explicit that IRI found that “after the polls closed and individual polling stations turned over their results to constituency-level returning centers, the electoral process ceased to be credible”. Likewise, the report states that “To date, there has been no explanation from the ECK as to exactly how or when it determined the final election totals, or how and when that determination was conveyed to President Kibaki to prepare for the inauguration.” The report also notes “. . . the obvious fraud that took place during the tallying of the presidential race . . . ” The Executive Summary states: ” . . . IRI has reason to believe that electoral fraud took place and condemns that fraud. The rigging and falsifying of official documentation constitutes a betrayal of the majority of the Kenyan people who peacefully and patiently waited in long lines to vote on December 27.”

Kenya Election Preparation: raising alarm for 2022, past secrets still buried

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.

Election Observation and Democracy Assistance: what is CEPPS?

CEPPS stands for the the Consortium for Elections and Political Process Strengthening; the members are the International Republican Institute (IRI), the National Democratic Institute (NDI) and the International Foundation for Election Systems (IFES).

Although CEPPS has been functioning as a USAID master funding mechanism for Cooperative Agreements for Democracy Assistance since the early post-Cold War era in 1995, it is only more recently that it has started to take on a more public face as an entity as opposed to the three constituent organizations. (See the explanation from their branding strategists here [with the colorful image of a Masaii woman voting])

While I have no idea why this has evolved in recent times, I will note that building up CEPPS as an “entity” with its own brand could be seen from outside as a way to establish an alternative structure directly tied to USAID in competition with funding for democracy assistance through the National Endowment for Democracy (NED).

IRI and NDI are two of four core NED institutions. IRI and NDI were incorporated by the leaders of the Republican and Democratic National Committees respectively, pursuant to the legislation establishing the National Endowment for Democracy as private organization, with a bipartisan board and Congressionally-appropriated funding and subject to the Freedom of Information Act. (The other two NED core institutions are the Center for International Private Enterprise [CIPE] affiliated with the United States Chamber of Commerce and the Solidarity Center affiliated with the American Federation of Labor-Congress of Industrial Organizations or AFL-CIO.)

IFES, on the other hand, which the branding material describes as a “core institution” of CEPPS, borrowing the NED terminology for the consortium members, is a more explicitly “private” entity created in 1987, four years later in than NED, during the second Reagan Administration, at the instance of then-USAID Director Peter McPherson as he describes in a 2017 interview on the IFES website. McPherson went to a American political campaign manager with a “bipartisan tone,” Cliff White (known publicly primarily for his role as Barry Goldwater’s 1964 campaign manager) to found the nonprofit because among the contractors USAID used there was a lack of technical expertise on the mechanics of organizing and holding elections. USAID provided an initial grant but IFES is not part of the Congressional mandate and annual budget appropriation process of NED and its four “core institutions” including IRI and NDI.

Readers will remember that IFES is a nonprofit corporation (like IRI and NDI) and was registered as such with the Kenyan government when President Kenyatta and his party leaders and government officials attacked IFES for not being registered as an “NGO” in late 2016 and early 2017 and allegedly being too cooperative with the opposition while managing the USAID election assistance and supporting the Independent Electoral and Boundaries Commission. Of course since IFES had been working on the same basis in essentially the same role with ECK since 2001 under Samuel Kivuitu’s Chairmanship and the IIEC and then IEBC under Issack Hassan, I saw this as pre-election “muscle flexing” by the incumbent President Kenyatta and his coalition directed at both the new Chebukati-led Independent Commission taking office in January to replace Hassan’s group after opposition protests and at IFES. The democracy donor diplomatic group led by US Ambassador Godec pushed back but Kenyatta’s Administration used its control of Immigration to force out the IFES Country Director and another key IFES employee. An outside replacement Country Director was “parachuted in” mid-March for the August 8 election.

See also “USAID is using a model for Kenya election assistance contracting that creates unnecessary conflicts of interest between organizations supporting election observation, voter education and embedded support to the Election Commission“.

Here is a discussion of USAID use of CEPPs from a review conducted by the Office of Inspector General for USAID focused on Europe, Eurasia and the Middle East released November 26, 2019, titled “Additional Actions Are Needed to Improve USAID’s Democracy, Human Rights and Governance Programs”:

CEPPS was founded in 1995 by the National Democratic Institute (NDI), the International Republican Institute (IRI), and the International Foundation for Electoral Systems (IFES), and holds a global Leader with Associate assistance award with the DRG Center to implement a variety of DRG activities, including political party assistance programs.

According to USAID officials, CEPPS received a series of global assistance awards from USAID for 1995 through 2020, which helped CEPPS partners develop a capacity to deliver political party assistance programming and establish a global footprint with a presence in every region in which USAID operates. The current global assistance mechanism was awarded in 2015 (a cooperative agreement) and provides missions the option to offer funding opportunities directly to CEPPS rather than develop a notice of funding opportunity locally.

Agency mission and headquarters personnel reported that, overall, CEPPS partners have excellent technical leadership and organizational experience to work collaboratively with host-country political leaders. CEPPS partners have developed strong work relationships with local stakeholders in many countries and are acknowledged as global leaders in the DRG sector. For example, in Ukraine, mission officials praised the NDI, IRI, and IFES Chiefs of Party as outstanding leaders who are highly accomplished and respected in their areas of expertise. They noted that the technical skills and positive reputations of these individuals are an asset for the mission and its DRG portfolio.

However, Agency officials also noted that missions often default to working with CEPPS partners through USAID’s global assistance award with the DRG Center—instead of pursuing opportunities to partner with other organizations that can provide similar services. Relying on CEPPS gives significant influence to a small group of partners to implement political party assistance programs and increases USAID’s reputational risk. Specific concerns reported to us by USAID officials include:

• NDI, IRI, and IFES have significant political connections and powerful benefactors on their boards of directors, including sitting Members of the U.S. Congress, former Ambassadors, and other political appointees. NDI and IRI in particular could be perceived as extensions of the U.S. Democratic and Republican Parties, respectively, by host-country stakeholders. For example, NDI’s website acknowledges that it has a “loose affiliation” with the U.S. Democratic Party and IRI’s current Chairman is a U.S. Senator in the Republican Party.

• In Georgia, CEPPS attempted to exclude a host-country democratic political party. In a 2017 letter to USAID/Georgia written on behalf of NDI and IRI, CEPPS stated that it would temporarily suspend assistance to a Georgian political party because of media reports of derogatory remarks made by party leaders about CEPPS partner staff, along with CEPPS’s disagreement with the party’s political platform and rhetoric. The mission responded to CEPPS’s letter by directing NDI and IRI to continue delivering assistance to the Georgian political party in compliance with USAID’s Political Party Assistance Policy.

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]

Update on Kenya 2013 election procurement corruption saga: magistrate dismisses two defendants after prosecution case, rules trial to proceed for Oswago and Shollei

Court rules ex-IEBC boss Oswago has case to answer over election device procurement malpracticesThe Star, 27 May, 2020:

This means the duo will now have to defend themselves over the charges levelled against them. Thirty-six witnesses testified in the case.

The court however acquitted two others who had been charged alongside Oswago. The magistrate said no case has been made against Edward Kenga Karisa and Willy Gachanja Kamanga.

In 2013, Oswago and Shollei were arraigned in court charged with failing to comply with the law relating to procurement.

The two allegedly failed to ensure the changes made to the contract awarded to Face Technologies Limited by the IEBC for the supply of Electronic Voter Identification in Tender No. IEBC14/2011-2012 were approved by the IEBC tender committee.

On a different count, they were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1.39 billion for the supply of EVIDs without ascertaining that devices supplied were inspected, accepted and met the technical specifications in the contract.

Kenya 2013 Polling Station Nairobi Dagorreti North

Kenyan elections: What happened to the Anti-Corruption investigation of ICT procurement fraud in 2013 (as ordered by the Supreme Court)? [Part One]

The articles quoted below indicate that the Ethics and Anti-Corruption Commission was already “on the case” having received information before the election about potential procurement fraud and started investigating even before the Supreme Court ordered such an investigation in its ruling upholding the IEBC’s award of the winner’s certificate to Kenyatta and Ruto.

IEBC officials may be prosecuted over gadget failure.” Business Daily 16 April 2018:

Electoral commission officials and vendors of electronic systems used in the March 4 General Election may face criminal prosecution after the Supreme Court recommended they be investigated over the failure of the gadgets. 

In its full judgment of presidential election petitions released Tuesday the six judges said there were squabbles among Independent Electoral and Boundaries Commission (IEBC) officials over the procurement leading to the failure of the electronic voter identification devices (EVID) and Result Transmission System (RTS).

“We recommend that this matter be entrusted to the relevant State agency for further investigation and possible prosecution of suspects,” the six judges led by Chief Justice Willy Mutunga, the Supreme Court President, said.

Failure of the devices was at the heart of the petitions challenging the election of Uhuru Kenyatta as Kenya’s fourth president filed by Raila Odinga, who emerged second in the election, and Africa Centre for Open Governance (Africog).

. . . .

The judges said the electronic system procurement was marked by competing interests some involving impropriety or even criminality. 

“Different reasons explain this failure but, by the depositions of Dismus Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process,” said the judges. 

The court said enough evidence was produced to show that EVID and RTS stalled and crashed.

. . . .

With the recommendation of investigation and prosecution which was bolded on page 113 page of the judgment, the Supreme Court has set the stage for the Director of Public Prosecution and the police department to swing into action. 

Mr Ongo’ndi, Head of IT at the electoral agency, had cautioned the electoral commission against buying the EVIDs, saying they required more time and a parallel technology to function optimally. 

In an internal memo to Deputy Commission Secretary for support services Wilson Shollei and copied to IEBC CEO James Oswago, Mr Ong’ondi said the kits tender should not be awarded because of the risk that the gadgets. 

The contract was awarded to Face Technologies at a cost of Sh1.3 billion, according to Mr Oswago, who said the devices failed because of an operational challenge.

“We have nothing to hide, we are ready for any investigations and the procurement being subjected to public scrutiny,” Mr Oswago said Tuesday.

The poll books were meant to identify a voter before one could cast a ballot. They were also to verify that one was a registered voter and account for all those who voted, eliminating the risk of multiple voting, ghost voters and ballot stuffing. 

Mr Oswago said the commission abandoned the transmission software developed by Next Technologies during the referendum and by elections to develop its own for the General Election at a cost of Sh40 million. That would put the blame on the transmission system failure at the door of IEBC’s IT department which is headed by Mr Ong’ondi.

The failed software was developed in partnership with International Foundation for electoral System (IFES), which also bought the servers. The mobile phones were supplied by Safaricom.

The procurement of electronic systems was marked by controversy from the word go leading to the cancellation of the tenders for the Biometric Voter Register (BVR).

Former President Mwai Kibaki and former Prime Minister intervened and the kits were eventually delivered through a Canadian government loan of Sh6 billion.

. . . .

The Elections Act sets out offences that can be committed by commission officials including “without reasonable cause does or omits to do anything in breach of his official duty”.

Such an offence attracts a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both upon conviction.

——–

EACC probes into poll kits procurement Business Daily 18 April 2013:

Ethics and Anti-Corruption Commission (EACC) has begun investigation into procurement of election equipment in line with a Supreme Court recommendation.

EACC in a press statement said the preliminary investigation began after it received an intelligence report that the procurement process was not transparent and may have been flawed.

. . . .

On Tuesday, the Supreme Court called for investigation and possible prosecution of electoral commission officials who may have been involved in impropriety during the procurement of electronic equipment.

A day later, Mr Tobiko [Public Prosecution Keriako Tobiko] sent a letter to EACC instructing it to start investigations, stating the directive arose from Justice Willy Mutunga court’s suggestion.

Evidence supplied by the electoral commission showed that the failure of the Electronic Voter Identification and the Results Transmission Systems mainly arose from misunderstandings and squabbles within the commission during the procurement. 

An internal memo by the commission’s head of IT warned of the risks posed by the kits.

The Treasury was forced to divert cash from other government operations to advance payment for the BVR kits and then obtain cash from the loan to replenish the IEBC account ahead of the General Election. 

Failure to each pact

“The Treasury has fully done its part and it is now up to IEBC to do their work,” the brief said.

The search for cash came after failure to reach an agreement by October 15 as stipulated in the contract with the supplier of the BVR kits, Morpho Canada. According to the Treasury, the government does not have a contract with French firm Safran Morpho as such but with the Canadian government that sought and obtained the BVR supplier, Morpho Canada.

Safran Morpho of France happens to be the subsidiary of Morpho Canada, which was contracted by the Canadian government.

Safran Morpho only made and supplied the equipment from France as a subsidiary of Morpho Canada, which is the actual contracting party in the deal with the governments of Kenya and Canada.

girungu@ke.nationmedia.com

Kenya: Investigations into IEBC ongoingThe Star via AllAfrica.com, 18 April 2013

The Ethics and Anti-Corruption Commission has said preliminary investigations into the procurement process undertaken by the IEBC began before the March 4 general elections.

EACC Chief Executive Officer Halakhe Waqo has said the investigations were prompted by information gathered by the commission to the effect that the procurement carried out by the IEBC was not transparent and may have been flawed.

In March 2017, before USAID started releases on my FOIA request on 2013 Kenya election, I called job of new IFES Country Director “the hardest in Kenya” and “probably impossible”

Read the whole post here:  The hardest job in Kenya . . .

. . . .

Realistically, the job looks impossible as structured, even if there had been adequate preparation time because of the conflicts of interest that USAID has built into the the role.  Compounding the problems from 2007 and 2013, USAID chose to select one entity to manage the inside technical support for the IEBC as per the IFES role since 2001 with the ECK/IIEC/IEBC, to provide voter education and also to lead election observation.  Thus IFES is wearing both “insider” and “outsider” hats at the same time, when the contradictory responsibilities of working with and observing the IEBC are both hugely challenging and vitally important.

”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.

According to the  IFES 2012 and 2013 Annual Reports, Smith & Ouzman was a corporate donor to IFES.