I am still reviewing the full report, but in summary:
Kenya’s 2017 general electoral process was marred by incidents of unrest and violence throughout the extended electoral period and by harsh attacks by top political leaders on electoral and judicial authorities that seriously undermined the independence of the country’s democratic institutions and the rule of law. The confrontational tactics and actions of Kenya’s political leaders polarized the country and exposed the deep tribal and ethnic rifts that have long characterized its politics. Regrettably, the elections represent a major setback in Kenya’s democratic development.
As far as pre-election deficiencies the report notes the late appointment of the IEBC Commissioners leaving inadequate preparation time overall, as well as highlighting a voter register that was improved but still had major inadequacies.
The report, while noting the ELOG parallel sample results as consistent with the IEBC’s announced results, emphasizes the problems with post- voting results transmission and announcement (in the context of that confrontational rhetoric and polarized environment):
Unfortunately, for unexplained reasons, the IEBC did not utilize the full seven-day period provided by the law to consolidate and post all the official polling station results forms. Instead, the IEBC hastily declared the final presidential election results on Aug. 11, just three days after election day, based on the constituencylevel results forms, and prior to the receipt of all polling-station level results forms. Worse still, election authorities failed to ensure that parties had timely access to official polling-station level results in the days following the announcement of official results, which made it impossible for parties and observers to fully verify and cross-check the results against their internal data and reports in time to include any key evidence in court petitions.
Recent political posturing over the 2022 presidential election and the upcoming national census and boundary delimitation process raises concerns that an electoral reform process could be delayed.
To move electoral reform forward, parliament should move swiftly to ensure that the requisite number of IEBC commissioners are in place. Meaningful reform cannot be implemented without a fully functioning commission.
Back in 2015 I submitted a Freedom of Information request for USAID records relating to the election assistance through IFES for Kenya’s IEBC (the election commission).
Several hundred pages were sent from the Mission in Kenya to the USAID FOIA office more than 30 months ago. A year ago I finally got the first release, simply a heavily redacted copy of the Cooperative Agreement itself funding the program.
I have just recently gotten the second release, the first substantive tranche of redacted copies of the underlying documents. From this I am starting to learn some information about the procurement of the failed Results Transmission System, but that matter remains somewhat sketchy so far.
Sadly I did see that IFES staff reported to USAID in the aftermath of the vote that they were busy working on the defense of the Supreme Court petition which impacted their availability to address questions about the systems issues.
I also learned that the election assistance donors were discussing amongst themselves the extent to which the UNDP, which administered “basket funding” for the election should cooperate with an investigative inquiry regarding procurements from the Ethics and Anti-Corruption Commission (EACC).
I did learn that one prospective bidder for one Results Transmission System procurement reported to the USAID Mission December 2012 that the allowed time for proposals was insufficient, to no avail as USAID said the impending election date did not allow delay.
When I consulted with AfriCOG, the Kenyan civil society organization, on election observation, and court petitions were filed seeking first to enjoin the IEBC from proceeding with an informal/irregular alleged vote tally when the Results Transmission System failed, and then after the IEBC went ahead, to challenge the alleged results, I did not know the Results Transmission System was a U.S. Government procurement under the Agreement, nor of direct involvement of IFES in supporting the other side in the litigation.
At this point, I am fairly well done with this blog as a format after all these years, but will continue to report on these matters of unfinished business as I learn more.
In my last post I discussed the late FOIA release of an April 2007 cable setting out U.S. Ambassador Michael Ranneberger’s explanation of a policy of hands-off neutrality on election reform proposals, and a “plague on both their houses” view of corruption. Ranneberger’s approach was to “build capital” with incumbent Mwai Kibaki’s Kenyan government heading into his re-election campaign, while distancing the U.S. from dissenting opposition and civil society voices.
A very different take was set forth only a few months before in documents released to me by USAID in 2014 under a FOIA request relating to the exit and public opinion polling program I managed in that 2007 election cycle as Chief of Party for the International Republican Institute. In memoranda from November 2006 to release a second round of $250,000 in funds for the polling program which had started with an exit poll for the 2005 Constitutional Referendum, USAID noted “a policy shift toward NGO and civil society partners in light of the weakening of Kenya’s Executive Branch as a reliable and willing partner in areas such as Democracy and Governance”.
Here are excerpts from the documents linked above:
Embassy Nairobi has requested that the funds be used to support activities to strengthen democracy and governance, environmental sustainability and economic development and trade. All the programs will be managed by the United States Agency for International Development (USAID).
In FY 2006, the funds will be used as follows:
*Democracy and Governance ($2,570,000):
$2.25 million will be used to support domestic and international observations, including training for political party agents and independent observers, allowing them to assess whether the presidential and parliamentary elections in 2007 are non-violent, transparent, and competitive.
*The U.S. Government seeks to build a democratic and economically prosperous Kenya. This is addressed through five strategic objectives focusing on: reducing fertility and the risk of HIV/AIDS transmission; improving natural resource management; improving the balance of power among the institutions of governance; increasing rural household incomes; and supporting education for children of marginalized populations.
The Recipient [IRI] shall institute a program to improve and increase access to objective, reliable information on citizen views and reform priorities through public opinion polling. The Recipient’s activities aim to provide this information to the Kenyan public, Kenyan policymakers, and the diplomatic community and to improve the science and popular perception of opinion survey research in the country.
The degradation of political discourse and consensus-building in Kenya since the country’s landmark 2002 election has culminated in the stalemate over the constitutional reform process. Having ridden a wave of public optimism into power, the National Rainbow Coalition (NARC) followed through on several of its most important promises during its first year in power. Shortly after taking office, President Mwai Kibaki’s government instituted free primary education nationwide. It also made a strong start in attacking the problem of corruption, beginning with a purge of corrupt members of the judiciary. However, in many areas of concern the performance of the government has been disappointing. Despite its promise of a new constitution within 100 days of taking office, deep disagreements within the NARC government about the content of various drafts have kept this new constitution from Kenyans for nearly three years. Furthermore, NARC’s promises of 500,000 new jobs per year and a vastly reduced crime rate have not materialized. Most unfortunate has been the government’s lack of seriousness in dealing with the resurgence of corruption at high levels of the Kenyan government, resulting in severe criticism by donor countries and civil society groups. Poverty and unemployment remain high; electricity, water, and other services are provided on an irregular basis; and violent crime is prevalent and uncontrolled. Expectations among Kenyans were high that the new leadership would bring rapid relief, but most of the problems have worsened, remained unchanged, or been only marginally improved during NARC’s first three years in office.
. . . .
A chief obstacle for the political parties and other major stakeholders in Kenya has been the lack of reliable information on the concerns and opinions of ordinary Kenyans. Policy priorities are set by political elites who have almost no access to data regarding trends in public opinion and no means by which to gauge how popular or unpopular specific policies are with different segments of the population. In he first few years of this decade, a number of influential opinion polls were conducted that showed the deep satisfaction of the Kenyan public with the Moi government and their desire for a viable alternative to come out of the scattered opposition. These surveys, including one poll conducted by the Recipient [IRI] in 2002 that showed for the first time that a united opposition could beat the Kenya African National Union (KANU), gave strong impetus to the formation of the NARC coalition.
However, after 2002, opinion polling did not become a regular feature of the Kenyan political scene . . . Some major media houses . . . most of these polls have focused exclusively on the “horse race” issues most likely to sell newspapers . . . Moreover, the methods used in some of the most widely-reported polls have been fiercely criticized . . .
. . . .
The future of democracy in Kenya is now much more uncertain than it seemed amid the euphoria of the 2002 election . . . .
It needs to be noted as well that in seeking release of additional funding for the IRI polling in 2006 USAID noted the IRI’s successful performance to date, including the “accurate” 2005 exit poll with the completion of all items on the program work plan, which included the public release of the exit poll results.
(Thus I was taken aback by the objection to public release of the 2007 exit poll results under an extension of the same program, not having incorporated a new direction of “building capital” into the program.)
A breakthrough on unraveling the story of Kenya’s stolen 2007 election:
This is from my original 2009 Freedom of Information Act request to the State Department for documents related to the 2007 Kenya exit poll I managed as Chief of Party for the International Republican Institute’s USAID funded polling program.
At that time State withheld one document in full on the basis of “predecisional privilege”; I eventually got that document released on appeal, and heard no more.
Yesterday, I checked in with the State Department FOIA web library to see if there was anything new on Kenya from other requesters and my search showed that an additional document had been published online in 2017, unbeknownst to me, in response to my 2009 request. It is an April 24, 2007 cable titled “Achieving USG Goals in Kenya’s Election” over the signature of Ambassador Ranneberger to the Secretary of State for the Africa Bureau and the Bureau of Intelligence and Research (INR) in Washington. “Sensitive But Unclassified” and released with no redaction. No explanation as to why this document, which pre-dates all of the others released or identified to me in 2013, was published online on April 18, 2017; if it was mailed to me at some point I did not receive it. Nonetheless, I am glad to finally have it (although I wish I had known about it when I published my June 2017 summary story on “The Debacle of 2007“ for The Elephant).
The big significance of the cable for me is that it documents that the State Department had in fact changed its approach toward Kibaki and toward the opposition between 2005 and April 2007. This was my perception “on the ground” during the campaign, but I had no explicit documentation until now. It also confirms that as of April, the plan was for a diplomatic observation of the election by State Department personnel only and not an International Observation Mission by the Carter Center as recommended by a 2006 USAID evaluation (referenced in the cable) or by IRI as initiated at the behest of the Ambassador that summer.
Likewise, the cable includes one more recitation that the purpose of the exit poll, formally, was to deter and oppose election fraud through an “independent verification of election results”, not to be “a training exercise never intended to be released” as asserted by Ambassador Ranneberger on a State Department webchat in March 2008 after the quashed but leaked poll had become a “hot potato”, and supported in State Department talking points prepared and circulated in response to media reporting in 2008 and 2009.
Unfortunately for me, when I took over the USAID polling program for IRI in June 2007, the program was operating under a Cooperative Agreement from 2005 that expressed the old policy of being disappointed in the corruption and underperformance within the Kenyan government as reflected in the Anglo Leasing security procurement frauds, the Standard Raid and Artur Brothers, etc. No one at USAID or IRI intimated that the State Department had changed policy and I had to figure it out for myself on the fly.
Here are key excerpts from the cable as published:
3. (SBU) Positioning: Some civil society leaders and opposition members of Parliament have complained recently that the U.S. mission is not close enough to the opposition. In fact, we have close contacts with the opposition from the top levels through the Ambassador to to all levels. However, the opposition longs for the days in 2005 when Foreign Minister Tuju publicly condemned the U.S. mission for supposedly desiring “regime change” in Kenya. They also cite the period in the 1990s when the U.S. mission openly sided against the Moi administration in favor of the multiparty democracy movement. However, the present government, for all its flaws, was elected under conditions widely considered free and fair. As for its indulgence of corrupt members of the political class, we note that the opposition has taken no disciplinary action against notoriously corrupt members within its own ranks. Corruption plagues the entire political class. We will continue to publicly condemn it as a major impediment to Kenya’s progress. We will continue to work closely with the Kibaki administration to achieve USG goals, but we will continue to assert ourselves as completely neutral concerning the election itself. Our strategy is to build capital with the government to be spent as needed over the course of the campaign to address critical electoral issues. We started that process through emphasis on the U.S.-Kenya partnership (reftel B). While we will be strictly neutral among the contending political parties, we will be fiercely partisan in support of the democratic process.
. . . .
8. (SBU) Electoral Reform: As reported in reftel B, electoral reform continues to be a hotly debated topic in Kenya. There is a consensus among all political parties and civil society that reform is required. There are no prominent defenders of the status quo. However, there is no consensus on the scope of reforms and the particulars of those reforms. Since the 2002 general election and the 2005 referendum on the draft constitution were both held under the present electoral system and were deemed free and fair, and since Kenyan society is adequately debating electoral reform, we see no reason for the USG to enter the fray. However, we have urged on all parties a spirit of compromise and an emphasis on the longterm best interests of the nation rather than short term electoral advantage. An opposition leader recently threatened a boycott of elections if his party’s electoral reform demands are not met. We made it clear to him that such intemperate language is not constructive and that boycotts are not acceptable. He stopped issuing boycott threats.
. . . .
– Public Opinion Polling: The International Republican Institute began implementing a public opinion program in 2005. The program seeks to achieve two results: increasing the availability of objective and reliable polling data; and providing an independent source of verification of electoral outcomes via exit polls. These results make an important contribution to elections and political processes. First, genuine free and fair elections require that citizens make informed choices. The polling data adds to the objective data available to citizens on key electoral issues. Second, the exit polls provide an independent assessment of the accuracy of the official electoral results, thereby supporting the assessment of the credibility of Kenyan electoral processes.
This program also enhances democratic political parties by enhancing the likelihood that candidates base their platforms on the key issues and concerns of their constituents, evidenced in the polling data, rather than the traditional focus on ethnicity and personalized political wrangling.
I will discuss the context and layers of meaning in this “new old” cable more in the near future.
Read the whole thing — that is what we American taxpayers have paid for. In summary: “Regrettably, the elections represent a major setback in Kenya’s democratic development.”
(h/t Daniel Finan of RFI English)
Update: (As of this morning, 8 March) I was not able to find the Final Report or related material on the Carter Center website.)
Most recently the Center had summarized: “The Carter Center said that the fresh presidential election was not fully competitive and marked by insecurity and political uncertainty. It called for national dialogue and reconciliation process to heal political and tribal rifts that were made worse by the 2017 elections.”
Since I elected to stay away from the 2017 election in Kenya myself, I have tried to avoid offering a lot of derivative commentary from afar, but have continued to be interested and concerned with how my American government representatives approach this on behalf of the American people.
Privately, I shared the worry that perhaps Raila was not being a good steward of the lives of his supporters given the risk of threatened action by the Kenyan governments’ security forces (and my inability to decipher what he was really aiming to accomplish).
Nonetheless, I also decided that it was not my place to lecture for several reasons. First, any Kenyan who would be deciding to attend or not attend the rally knew full well and far better than I the risks of running afoul of the GSU (General Service Unit, a paramilitary wing of the police, known for use for high profile political missions, such as sealing off Uhuru Park in the weeks after the 2007 election to prevent opposition rallies) or other force at the disposal of the “Commander in Chief President”.
Third, in this election cycle we did not give visible public support to reasonable reforms of the IEBC process. I am not willing to be too critical from afar without knowing more (although I don’t know more because our approach is intentionally more opaque than I think is appropriate or prudent) but in watching as an American back home we certainly gave the impression over the last couple of years that while we wanted things to go smoothly and would support negotiation of the disputes surrounding the IEBC in areas where they were pushed to the forefront by the opposition, we remained in the mode of supporting the old “Chickengate” IEBC team and staff, even while the investigation of procurement fraud directed by the April 2013 Supreme Court ruling never happened. Even when the British secured criminal convictions for the Chickengate bribes and paid money over to the Government of Kenya, we were mute as Kenyans enjoyed the customary impunity for corruption–and when Uhuru used the funds to do a “photo op” for the purchase of ambulances as if it was a charitable donation.
We allowed the incumbent administration to attack and potentially interfere with our assistance to the IEBC through IFES in the critical months before the election (see “The hardest job in Kenya . . .”) without obvious penalty, and stayed silent on reforms called for by the EU Election Observation Mission and others–aside from the opposition–in the wake of the Supreme Court’s September 1 ruling striking the presidential election of August 8 because of the IEBC deficiencies.
As it turned out the incumbent administration acted extra-legally to shut down private broadcasters (except the President’s own) but had the security forces pull back and did not initiate the feared violence. If we had any influence on that decision then I am pleased that our long years of support to Kenya’s various police and security services and governments of the day may have borne some positive fruit in that instance.
As far as the notion that Raila would be likely to unilaterally instigate violence in this situation, people in the State Department would do well to remember the analysis of Ranneberger’s own staff pre-election in 2007 that while there was hate speech on both sides the largest share was directed against Raila rather than on behalf of his candidacy or the opposition.
Invoking the so-called “ooga booga factor” to scare Westerners about Raila has been more than a cottage industry in Kenya (and in London and Washington PR shops) along side the ethnic hate speech to rally other ethnic groups against him in Kenya. And Raila is unavoidably controversial in some respects and gives his critics ammunition. But at present Raila is in a relatively physically powerless position in opposition; the Government of Kenya security forces are in the hands of “Uhuruto”, controversially elected in the first place as a “coalition of the killing” from the violence that was taking place exactly ten years ago.
Let’s remember that then-Assistant Secretary of State Jendayi Frazer herself insisted that what was being done through the Kalenjin militias in the Rift Valley in early 2008 was “ethnic cleansing” and we all know the “revenge” attacks through the Mungiki against especially Luo and Luhya who had the misfortune of living and working in Naivasha and Nakuru were horrific. And that the largest share of the killing was done by the police and largest number of killed identified by ethnicity Luo per the Waki Commission. The ICC Prosecutor’s Office may have run a sloppy legal operation, but did they really get “the wrong guys” factually in the six indictments? Will O.J. someday find the real killers? (Do Raila and Kibaki–Commander in Chief then–and many other politicians also bear some real moral responsibility, too–surely so; does Kalonzo Musyoka? I personally would not vote for either ticket if they were running in my country, but they weren’t, and left us with our own problems.)
Fair minded representatives of the United States in current circumstances have to recognize that the threat of violence on behalf of an incumbent “Uhuruto” regime in full control of all military, paramilitary and other police forces is much greater than that presented by an opposition rally or ceremony.
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”.
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 procedures. 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.]
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.)
If Kenyan Election Commission leader Roselyne Akombe’s loud public whistle was not enough to get the Western democracies to back off the “happy talk” about Kenya’s “fresh election” preparation [as the Chris Msando murder was not in July and August] then there is nothing more to say.
It is worth remembering that when USAID solicited proposals for the Kenya Electoral Assistance Program 2017, it required IFES and the others to include an alternative plan for an election pushed back several months. This is hard now, but Kenyans and their partners can give themselves a break here if there is enough good will and sobriety lurking somewhere beneath the surface. And if not, then safer not to pretend.