Best overall international piece so far on Kenya Supreme Court decision

Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”

One of the most important lessons from today is how cowed Kenya’s media really is by the Government.  This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres.  But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.

Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.

For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.

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.

Kenya’s Presidential Election in a nutshell:  1) widespread failure or non-use of purchased electonic Results Transmission System (as in 2007 and 2013); 2) lack of transparent or complete “complementary” substitute (as in 2007 and 2013)

The voting and counting, as I have previously noted, is the same this year as in the past.  The voter register remained messy again with likely more than one million dead voters and plenty of ineligibles, and was not fixed and locked down as required.  From outside appearances so far, however, the EVID system seems to have substantially worked this time which may have been a big improvement from 2007 and 2013 in limiting in person voting by ineligibles.

The RTS system which was to transmit from a unique registered and logged-in KIEMS device for each of the polling stations a scanned image of the finalized executed Form 34A simultaneously to the various tally centres, either was substantially misused or failed to work as advertised and/or some combination of the two.  The Jubilee majority in Parliament early this year, coincident with the turnover from the Hassan-chaired IEBC to the Chebukati-chaired IEBC passed over opposition objection the option of allowing a complementary substitute for the electronic system.  As far as I can tell the IEBC did not actually plan and establish such an alternative system, nor certainly did they effectuate it in any comprehensive, demonstrable, traceable way.

Nevertheless, rather than take the seven days alloted by law, Chebukati announced alleged final Presidential results roughly 72 hours after poll closing.

Is this “close enough for horseshoes and Kenyans” or is more required to successfully conduct and conclude a presidential election in Kenya in 2017?

Update: my email to a friend regarding the Court-ordered review of IEBC presidential election data:

I haven’t finished reviewing the Registrars report in detail, but it seems clear to me that the IEBC declined to provide, as directly ordered by the Court, the evidence that would verify or falsify alleged transmittal of scanned Forms 34A by KIEMS sets from Polling Stations to Tally Centres (Constituency, Cty, Nat’l).

Whatever the Court decides to do about the on the ruling petition as a whole, allowing the IEBC to flex its muscle over the Supreme Court openly in this way would probably pretty well tell us where things are headed on rule of law issues over the foreseeable future and whether there will be a serious challenge to Ruto in 2022-32.

See “Audit Report on IEBC Servers: login trails, Forms 34A and B not provided” in The Star.

[Updated 11 Aug] Kenya election updates 

My update is to just say Kenyan IEBC is not done with their job, but I’m done saying anything at all about this election process so far.  Since I’m not involved it doesn’t help to offer public commentary.

We all know that Kenya suffers from pervasive corruption; we all have been warned about lack of transparency in the election

For three years running, Kenya has ranked below Nigeria in Transparency International’s Corruption Perception Index, coming in most recently tied at 145 in the list of 176 countries.

Even the most crucial security sectors, including most especially the police services (which, by the way, have received aid in training and other support from the United States since 1977) are pervasively corrupt and widely feared.

Under the circumstances it would be an extraordinary feat–rooted in a resolute act of will–for the Kenya’s IEBC (and its donors) to pull off a relatively clean and transparent election process.  You will have to excuse me for being concerned after my experiences in 2007 and 2013.

So far, we have had special legislation passed by the ruling party early in the year in parliament over opposition objections to mandate a “manual” backup system for reporting the votes from the polling stations in the event the electronic system “fails” as it did in 2013.  It is now barely more than 30 days before the vote and the IEBC has not explained what this manual system is.  I was told in 2014 by a donor insider that in 2013 the IEBC had no “plan B” in place to obtain results from the polling stations even though they had gone ahead and scrambled, kicked observers out of the tally process, and announced final presidential results after the electronic reporting system was shut down.  Clearly the IEBC needs a “plan B”–whatever it is–both as a practical matter and now as required by law.  And it needs to be transparent, now.

The Kenyan court ruling that the votes as counted at the polling station are legally final and not subject to being unilaterally changed without legal proceedings by the central IEBC process certainly helps–but there must still be a process to gather the numbers as posted on the door of each polling station (and to note any polling stations where the results are not publicly posted as required).  According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.

Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure.  The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement.  What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability.  IFES will ensure this system is fully installed, tested and operational for the 2012 election.  Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.  Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as  USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.

In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).

Warnings about transparency have been outstanding for months from the International Crisis Group (See: International Crisis Group on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet.) and most recently Ambassador Mark Bellamy has published a June 29 assessment for the CSIS Africa Program noting the need for more transparency from the IEBC (Kenya’s Young Democracy Put to the Test.)

This year’s version of the “results transmission system” is wrapped into one big high risk procurement for the “Kenya Integrated Electoral Management System” of “KIEMS” which includes both the electronic voter identification system and the results transmission system.  The ordinary procurement system failed to generate a legally sustainable award for this system.  The new IEBC, running out of time, announced a sole source award this spring to one of the unsuccessful previous bidders, the French company Morpho.

A related company, Safran Morpho, was given a 2012 sole source award for the BVR kits for the 2013 election — which ended up with the election day use of a separate hard copy printed register at each of 30,000+ polling stations rather than an integrated and biometrically verified system.  The sole source purchase in 2012 was announced as a “state to state” transaction–which eventually came out to mean some type of loan from the Canadian Government to the Government of Kenya (involving a Canadian subsidiary of the French parent).  When the sole source transaction to buy the KIEMS system this spring was announced by the IEBC, it was reported in the media as again a “state to state” deal–with no details as to what states or what terms.  The IEBC announcement gives no indication as to whether the reporting of a “state to state” deal is accurate or otherwise whether there is any donor funding involved.

Who has paid for and/or financed the KIEMS system?  Will it work as advertised?  If not, will the IEBC or the donors tell voters ahead of time?

 

“THE DEBACLE OF 2007” – my piece in The Elephant on how Kenya’s politics was frozen and an election stolen . . .

THE DEBACLE OF 2007: How Kenyan Politics Was Frozen and an Election Stolen with US Connivance | The Elephant

Latest Kenya election remarks from Amb. Godec emphasize need for change; corruption undermining democracy

imageU.S. Ambassador Godec spoke out strongly on corruption in pre-election remarks to students at Maseno University on Wednesday as reported by CapitalFM: “Vote so as to bring change to Kenya says U.S. envoy.”

While emphasizing he personally and the United States favored no candidate or party among Kenyans’ choices, Godec stated:

Corruption is undermining the future of Kenya.  It is creating huge problems and it is underming democracy., security and having a very bad effect and this needs to change.

We seem to be seeing a policy shift from the U.S.  We were strongly opposed to government corruption off and on under Moi after the Cold War and we were also opposed to corruption in 2005-06 with the Anglo Leasing and other scandals.

After getting burned, perhaps, for changing positions in 2007 to become soft on corruption under Kibaki and looking the other way as he stole re-election, we were back to being “against” to some degree on a “go forward” basis after the formation of the “Government of National Unity” in Kibaki’s second Administration.  We preached “the reform agenda” through passage of the referendum to approve the new constitution in 2010 (noting that one pesky problem:  Daily Nation reports that USAID Inspector General has found that US funding did go specifically to encourage “Yes” vote on referendum.)

After years now of being back on our heels for whatever reason, we have rediscovered the dignity required to speak up and now to take a “small dollar” but conspicuous and significant action in suspending a little over $20M in support for the looted Ministry of Health, and now open acknowledgement of that the magnitude of the problem has reached a point that it is a critical threat.

Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability.  IFES will ensure this system is fully installed, tested and operational for the 2012 election.  Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

The Agreement is heavily redacted and divided into four files for length;

(1 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)

(2 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)

(3 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)

(4 of 4) F-00034-16 1st Interim-Response Documents (4-4-2017)

Since I have been fussing periodically about how long it has been taking to get any documents released from my October 2015 FOIA request to USAID for documents about our funding for the IEBC in 2013 and related, I need to thank the USAID FOIA Office for getting this initial release out (and hope for the rest to be in time to be usable for process improvement for the impending next election).

As I wrote more than two years ago, as more information was being uncovered in the UK’s prosecution of Smith & Ouzman, Ltd. and its owners for bribing Kenyan election officials for favor on procurements:  USAID’s Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers.

Also see: “Thoughts on Kenya’s Supreme Court Opinion” from April 2013:

The Court did not give rulings on the admission of evidence such as the videotapes presented by AfriCOG’s counsel of results being announced at the County level that differed substantially from those announced by the IEBC at its national tally centre in Nairobi, or otherwise grapple with any specifics of reported anomalies, including those among the sample of 22 polling stations that were to be re-tallied. Nor did it address the fact that its order to review all 33,000 Forms 34 and the Forms 36 from all constituencies was only slightly over half completed.

The Court declined to impose legal consequences in terms of the announced election outcome from the failure of the IEBC’s technology, but significantly did find that the main cause of the failures of the electronic voter identification system and the electronic results transmission 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.”

According to the Independent Review (“Kreigler”) Commission, in 2007 USAID through IFES paid for the purchase of computers for the planned results transmission system for the ECK.  Very late before the vote, according to the Commission, the ECK voted to shelve the system and not use it.  None of the actors, ECK, IFES, USAID nor the US Ambassador publicly disclosed the “shelving” decision. The Ambassador gave his subsequent pre-election Nairobi interview published as “Ambassador expects free and fair election” nonetheless.

The Kreigler Commission investigating sought the minutes of the ECK’s action; the ECK refused to release the minutes and the Commission went ahead and submitted its report to President Kibaki and disbanded, noting the missing evidence.  [Again, I was told by a diplomat involved in January 2008 that key Returning Officers at the last minute were bribed to turn off their cell phones and “go missing” so that vote tallies could then be “marked upwards” to give Kibaki the necessary margin at the national level; likewise, we learned from the Daily Nation that Wikileaks published cables showing that the U.S. issued “visa bans” against three ECK members based on evidence of alleged bribery.  The late decision by the ECK to shelve the U.S. purchased computer system would thus have been critical to allowing the bribery scheme to be effectuated.  See “The War for History part seven: What specifically happened to Kenyan’s votes?“.]

In 2007 we obviously knew that the system had been shelved and kept quiet about it. In 2013 we let on that we expected the system to work–even was in the process of working–until it was shut down early after the vote.  That is hard to understand given that IFES was to “ensure this system was fully installed, tested and operational” and make the necessary purchases.  I will hope that the rest of the requested documents will clarify all this and be released as soon as possible to benefit the planning for the upcoming 2017 election.

See also:  “Nigeria example shows U.S. and other donors should act now on Kenya IEBC technology procurement corruption“.

Election Violence threat in Kenya — my thoughts on NDI’s new warning 


1. NDI is right to warn of a risk of violence, highlighting the unprecedented level of division and tension in Kenya related to the competition for power in this election scheduled for August.

2.  Given that the Kenyan Government is led by politicians widely understood to have been major players in the killing and mayhem following the failure of the 2007 election — elevated to office on the basis of their status as tribal champions indicted by the ICC — #1 can hardly be any surprise.

3.  Further, the “reform agenda” intended to address the catastrophe of 2007-08 has long been diverted and shelved.  Zero accountability across the board for the previous election violence.  The Truth, Justice and Reconciliation Commission report was interfered with by the Executive, then shelved with so many other accumulated Kenyan commission reports gathering dust.  No accountability for the bribery of Election Commission members and officers in 2007 (in fact, a cover up), followed by impunity in the buyout of the IEBC last year after Chickengate and the failures of 2013.

4.  The main reform was the passage of the new Constitution of 2010, but in the hands of anti-reform politicians under no serious further international pressure, the main change is more offices to potentially fight over.  There has been some strengthening of some institutions and backsliding in others.  I think everyone agrees there is still widespread extrajudicial killing by police (the biggest cause of death in the PEV) and extensive corruption (which facilitated the collapse of the ECK).

5.  Certainly the performance of the KDF as well from Westgate to Somalia suggests a less disciplined force than most of us perceived in the 2007 and 2013 elections.

6.  Arguably the incumbent Kenyan Administration has more leverage over the US and UK governments now than Kibaki did in 2007.  Although in 2007 Kenya was a key security cooperator with the US on Al Shabaab, at this point the KDF is in Somalia on an indefinite basis, in part as a component of AMISOM in which the US and the UK are heavily invested, with the US now stepping up direct action against Al Shabaab.  In the meantime, South Sudan — the other “nation-building” project with its back office in Nairobi —  is really failing.  Conflict threatens in the DR Congo with Uganda and Rwanda pulling away from democratization progess as the potential threats and temptations may be increasing in the neighborhood.  Obviously it would be hard for the US or the UK, as well as for others, to “cry foul” over a situation like 2007 where the incumbent was not willing to be found to have lost re-election.

7.  It’s too early to know what the dynamics of the campaign will be and I am not closely in touch at all with the hidden backstories this time (like most outsiders, especially those not even living in Kenya this year).  It seems foolish for any of us to gamble much on prognostications or predictions, but the macro risk is surely great enough to warrant some soul searching and some planning.  Part of this is sobriety in recognizing that there is no time left for extensive reconciliation efforts or deeper institutional work that has eluded us over the years.

8.  Boris Johnson will have Kenya on his radar, for better or worse, but it’s hard to guess who outside of AFRICOM will really be engaged on Kenya at a senior level in the US Government before any election crisis, even though the risk is so much more widely recognized this time.  Pre-election funding is much greater than in 2007 but extra resources for a political crisis may be harder to rally.

9.  I remain of the belief that Kenya was not really “on the brink of civil war” in 2008 because such a large part of the violence was instrumental for political gain and none of the politicians would have benefited from a civil war.  In 2013, I agree that some level of optimism about institutions, mostly the Supreme Court, that we don’t necessarily see now had a lot to do with reducing violence, but a big factor was the mass security mobilization – it was understood that protestors would face police and military bullets and not many were willing to take an initiative in that direction.  The benefit of 2013 and the other problems with the institutions pre-election this year is that expectations are low — an openly stolen election would be far less of a shock than in 2007 and as in 2013 the State’s willingness to kill cannot be doubted.  On the other hand, if violence did break out inspite of these initial barriers it might be harder to temper and eventually end than in 2008.

Update: 13 April — See Muthoni Wanyeki’s latest column in The East African, Polls: the heat is rising, mayhem escalating,” for a look at the current temperature official behavior around the country.

 

New court ruling may reshape power over Kenya’s votes

Kenya challenged vote

Kenya election ballot

A Kenya High Court ruling has determined that the presidential election votes–which are counted only at each polling station–are to be treated as final when announced at the initial parliamentary constituency tally centre.  This means that any changes to the tally at the national level in Nairobi by the IEBC, the electoral management body, will have to come in the form of a court challenge.

This approach would have prevented the ECK and IEBC from taking the approach of 2007 and 2013, where national results relied on changed and missing vote counts.

The key thing to remember about Kenyan elections is that the votes are all hand marking of paper ballots, which are counted only at each polling station.  The results are recorded on Form 34 and–if law is followed–posted for the public on the door to the polling station.

The ballots and another exected copy of the results are sealed in the ballot box.

After that, it is all a power struggle and smoke and fog–high tech and low tech.  Arithmetic is done or not done in accordance with power and interests.

The court appears to have moved some power back toward the voters and away from central government.  We shall see.

I will follow up after I’ve read the opinion and caught up on some of the “moving pieces” on the election preparation.

Congratulations to Maina Kiai and his colleagues who brought the constitutional challenge.