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Response Letter on Multi-sectoral Committee

Your Ref: OP/PAI /93A                                                                                                Our Ref: GO/ JR/01 /817 August 22, 2017 Mr. J.W. Irungu, CBS Principal Administrative Secretary Ministry of Interior & Coordination of  National Government Harambee House, Harambee… Read More »Response Letter on Multi-sectoral Committee

Election wasn’t free and fair, AfriCOG says, details IEBC’s flaws (The Star – August 21, 2017)

AfriCOG have expressed “utter disappointment” in this year’s election, saying IEBC failed to perform in line with the constitution.

In a statement issued at their office in Lavington, Nairobi, on Monday, executive director Gladwell Otieno said the poll was “neither free, fair, transparent or regular”.

“It is very hard to burglar-proof a house when the burglars are already inside,” she said in the address that touched on a raid of the premises by police officers and KRA agents.

More on this: [VIDEO] Police, KRA raid AfriCOG offices after Fazul’s shutdown threat

The lobby filed a petition after the disputed March 4, 2013 contest between Uhuru Kenyatta and Opposition chief Raila Odinga but it was thrown out.

There has been speculation that the raid took place to keep the organisation from filing a petition on the August 8 election.

NASA chiefs led by Raila Odinga have filed a petition at the Supreme Court.

Otieno said the government spent a lot of money purchasing equipment meant to boost the election’s credibility but that “progress is barely visible”.

“We have the same amount of failures that we experienced in 2013, even with the new technology. We have noted numerous irregularities during the whole election process,” she said.

“The 2013 election was not fair and credible. Electronic systems to prevent irregularities failed, IEBC did not have an official voter register and unfortunately in 2017 they did not have it either.”

The executive director further noted voter registration failures in some areas, which left equipment unable to recognise some members of the public.

Otieno also noted returning officers complained that their laptops crashed or that they forgot the passwords and ended submitted results by phone.

“They did not offer equal conditions and opportunities for all candidates to take part. IEBC failed to allow political parties to inspect all the facilities being used in the elections,” she added.

“They also failed in protecting ballot boxes after elections so as to prevent them from being tampered with.”

Otieno also said agents were locked out of tallying centers on allegations of being rowdy after perceived system failure.

She said they did not witness counting and cannot assert that the results presented were true.

“Forms for presidential, governors and MPs results contained different numbers of registered voters.The process did not offer equal conditions and opportunities for some citizens, due to the unknown delay in some areas, to have access to polling stations and to vote.”

The AfriCOG boss further said results announced by the electoral agency did not match those of a single candidate, numbers which she termed “strange, different or higher”.

“The IEBC’s portal displayed results of some areas even before the returning officers had transmitted the results,” she said.

“There was a suspicious constant graph of results from the beginning of the transmission which is quit strange if the results were being sent randomly all over the country.”

On August 16, the High Court suspended the crackdown on AfriCOG on allegations of non-compliance and illegal operations.

AfriCOG and seven rights activists moved to court to stop the NGOs board from interfering with its operations.

Fazul ask DCI to shut down AfriCOG, arrest directors over illegal operations (The Star – August 15, 2017)

The NGO Board has written to the DCI to shut down AfriCOG over claims it is operating illegally.

In a letter to DCI boss Ndegwa Muhoro on Tuesday, executive director Fazul Mahamed said the organisation has not been registered and should be shut down.

“The board has noted that AfriCOG is not registered as required by the law. The purpose of this letter is urge your office move with speed to close down the operations,” he said.

Fazul said its directors and the members should also be arrested for contravening the NGO provisions.

“… with a view to arraigning and prosecuting them in a competent court of law,” he said.

He directed AfriCOG’s directors to cease all operations with immediate effect until when they will obtain a certificate of registration.

Fazul also directed the Central Bank of Kenya to freeze all the organisation’s accounts.

This comes a day after the government deregistered KHRC over allegations it is operating illegal bank accounts, employing expatriates fraudulently and failing to account for funds.

Kenya Human Rights Commission is associated with Professor Makau Mutua.

In a letter to the rights group on Monday, Fazul said the agency has opened four illegal accounts. Fazul said two of these are at NIC bank and the others at CBA.

On August 1, the board targeted Sh530 million in the accounts of an NGO associated with NASA chief Raila Odinga’s daughter Rosemary.

He said Key Empowerment Foundation Kenya received this amount from George Soros Foundation.

Fazul whom the Ethics and Anti-Corruption Commission has said is not fit to run the NGO Board is believed to have the ears of the powers that be in government.

When Devolution CS Mwangi Kiunjuri suspended him over the fake academic papers, the Coordination Board was quickly moved to the Interior ministry.

KHRC says move to delist it is politically motivated as NGO Board bares fangs at AfriCOG (Standard Media – August 15, 2017)

Kenya Human Rights Commission Chairman Prof Makau Mutua has dismissed the move by NGO Coordination Board to deregister the equal rights lobby. The NGO regulator accuses the rights commission of misusing Sh1.2 billion.

On Monday, Fazul Mahamed, the NGO Coordination Board Executive Director wrote to Prof Mutua informing him that KHRC had flouted the law by evading tax to the tune of Sh100 million from October last year, misused billions of shillings and had hired foreigners without proper work permits.

Fazul also asked the Central Bank of Kenya (CBK) to freeze all bank accounts operated by KHRC. But in a response on Twitter, Prof Mutua said the NGO board has no authority to delist KHRC. “Fazul has no legal authority to deregister the KHRC. High Court last year rejected these false charges and ordered him to cease and desist,” Makau tweeted. In the letter to the commission, Fazul accused it of operating four illegal bank accounts at the NIC Bank and Commercial Bank of Africa.
In a press statement, KHRC condemned the de-registration as an act of intimidation rather than enforcement of the law. KHRC revived the issue of Fazul’s academic qualifications and questionable conduct as the NGOs Board Executive Director.

Fazul has been in court trying to block the implementation of a report by the Ombudsman that he used a forged certificate to get a job at the the NGO Board. In May, High Court Judge George Odunga declined to issue temporary orders, saying that it would be a violation of rules of natural justice.

KHRC was registered in Kenya as an NGO in 1994 and has been on the frontline of fighting for the enhancement of human rights. Members of the KHRC board are Maina Kiai, Godwin Murunga, Muthoni Wanyeki, Devinder Lamba and Father Gabriel Dolan.

In another move, Fazul has written to the Director of Criminal Investigations, Ndegwa Muhoro, seeking to stop the operations of another non-state organisation until it is registered. According to the NGO Board executive director, Africa Centre for Open Governance (AfriCOG) has been operating illegallybecause it is not registered.
Fazul has also asked the Central Bank of Kenya (CBK) to freeze AfriCOG’s asked bank accounts. According to information available on its website, AfriCOG is an independent, non-profit organisation that provides cutting edge research and monitoring on governance and public ethics issues in both the public and private sectors so as to address the structural causes of the crisis of governance in this country.

AfriCOG is headed by an Executive Director accountable to a five-member Board of Directors, according to africog.org. The secretariat consists of staff organised functionally across two main function areas. The first area is programmes. This branch consists of staff dedicated to developing, implementing and monitoring AfriCOG’s programme activities built around the core functions of: research, advocacy and partnerships; and dissemination and linkages.

Members of AfriCOG’s board are Maina Kiai, Gladwell Otieno, John Githongo, Stella Chege, Donald Deya and Funi Olonlsakin. Just before the August 8 polls, AfriCOG had asked the courts to compel the Independent Electoral and Boundaries Commission (IEBC) to open the voters’ register for public scrutiny.

Kenyan government threatens to close down two rights organizations (Africanews – August 15, 2017)

The Kenyan government is trying to shut down a rights group and a pro-democracy organisation who have raised queries over last week’s disputed presidential election, officials from the organisations said on Tuesday.

Official letters from the NGO Board – the government-run body that registers and regulates NGOs – to the Kenya Human Rights Commission (KHRC) and Africa Centre for Open Governance (Africog) said the two organisations risked punishment for administrative and tax reasons.

International and domestic observers have said the election process was largely free and fair, but opposition leader Raila Odinga has disputed the official results, which show incumbent President Uhuru Kenyatta won by a margin of 1.4 million votes.

The NGO Board did not return calls or emails seeking comment and Reuters reporters were not permitted to enter its offices.

Mwenda Njoka, a spokesman for the interior minister, said the letters, circulating on social media, were genuine. Africog and KNRC said they had not received any official communication.

“This is an attack on any kind of independent voice,” said Gladwell Otieno, the executive director of Africog.

Otieno repeatedly raised concerns about what she described as insufficient preparations by the election board in the run-up to last Tuesday’s elections, when Kenyans chose a new president, lawmakers and local representatives.

Both organisations also expressed public concern over the unsolved torture and murder of a key election official a week before the vote.

Odinga has not yet provided any evidence of rigging but is due to address the nation on Tuesday. His rejection of results triggered demonstrations and a deadly crackdown by police in his strongholds, including Nairobi slums and the western city of Kisumu.

George Kegoro, the head of KHRC, said his organisation was compliant with all laws and was being targeted for political reasons. He denied they had failed to pay taxes, operated “illegal” bank accounts or employed foreigners without work permits.

“If you operate in the kind of environment we do, we have to be compliant. The rules are a drag but we observe them,” he said.

His organisation had already successfully defended itself in High Court against the same accusations, he said, making the new letter threatening de-registraton “a travesty of justice”.

“We think its got to do with the politics of the season. We’ve played a leadership role in organising civil society participation in this election. They (the government) don’t like that.”

Otieno said her organisation did not fall under rules governing non-governmental organisations and was properly registered.

Njoka denied the organisations were being politically targeted and said “there were some issues with their auditing and accounting … If they give good accounts they may not be de-registered.”

Arrest threat hangs over Githongo, Kiai, Gladwell as AfriCOG ordered shut (Capital FM – August 15, 2017)

By OLIVE BURROWS, NAIROBI, Kenya, Aug 15 – The NGO Co-ordination Board has written to the Directorate of Criminal Investigations urging it to immediately shut down the Africa Centre for Open Governance (AfriCOG) and arrest its directors.

The Board’s Executive Director Fazul Mahamed has also advised the Central Bank of Kenya to freeze all its bank accounts since it is operating illegally.

“AfriCOG is not registered under the NGOs Co-ordination Act 1990 as required by law. In fact,” Fazul states, “AfriCOG is and continues to operate as a charitable organisation in direct contravention of Section 22(1) which according to the Act is an offence punishable by law.”

An offence which Fazul submits, attracts the penalty of an 18-month jail term.

AfriCOG which is chaired by John Githongo and whose board members include Maina Kiai and Gladwell Otieno was party to the last presidential petition with Kethi Kilonzo as its legal representative.

Most recently, it filed a case seeking to have the Independent Electoral and Boundaries Commission compelled to open up the electoral roll for scrutiny.

The action follows the de-registration of another high profile Kenyan non-profit, the Kenya Human Rights Commission on Monday, a day before they were set to file a petition challenging the re-election of President Uhuru Kenyatta.

KHRC which shares a board member in Kiai with AfriCOG, therefore described the action as politically motivated.

The action of the putting these not for profits out of business, as it were, follows criticism that Kenya’s civil society has faced great threat under the administration of President Uhuru Kenyatta.

On his visit to Kenya back in July of 2015, then US President Barack Obama stressed the importance of the civil society in societal transformation having himself worked in the sector.

“Despite the hard-earned political progress that I spoke of, those political gains still have to be protected. New laws and restrictions could close off the space where civil society gives individual citizens a voice and holds leaders accountable.

The ability of citizens to organize and advocate for change – that’s the oxygen upon which democracy depends.”

NGO Board seeks to de-register AFRICOG for operating illegally – (Citiezen TV August 15, 2017)

The Non-Governmental Organizations (NGOs) Co-ordination Board has written to the Directorate of Criminal Investigations (DCI) seeking to de-register Africa Center for Open Governance (AFRICOG), alleging that it is ‘operating illegally’.

In a letter addressed to the DCI boss, Ndegwa Muhoro, the NGO board argues that it has come to its attention AFRICOG operates without registration, contrary to Section 22(1) of the NGOs Co-ordination Act 1990.

Additionally, the NGO’s watchdog says that by virtue of the Gladwell Otieno-led AFRICOG operating as a charitable organization in the area of democracy, transparency and open governance in Kenya, it has gone against Section 22(1) CAP 134 Laws of Kenya.

The law states that it shall be an offense for any person to operate a non-governmental organization in Kenya for welfare, research, health relief, agriculture, education, industry, the supply of any other similar purpose without registration and certificate under this act.

“The board has directed the office of the DCI to act swiftly and close down all AFRICOG operations until the matter is resolved and to further arrest the its directors for contravening laid provisions, with a view to arraign and prosecute them in a competent court of law,” read the letter.

Further, the board wants the Central Bank of Kenya to freeze all bank accounts and funds of AFRICOG.

Fazul Mohamed’s sword now targets AfriCOG – (Daily Nation August 15 2017)

A day after deregistering the Kenya Human Rights Commission, the NGOs Coordinating Board now wants the Africa Centre for Open Governance (AfriCOG) shut down.

The board, in a letter to Director of Criminal Investigations Ndegwa Muhoro, alleges AfriCOG has been operating illegally because it “is not registered under the NGOs Coordination Act 1990 as required by law”.

LAW

“AfriCOG is and continues to operate as a charitable organisation in direct contravention of Section 22 (of NGOs Co-ordination Act 1990 )which according to the Act is an offence punishable by law,” NGO Coordination Board Executive Director Fazul Mohamed says in the letter.

He also quotes Regulation 75 of the Act and the attendant regulation, which requires all organisations engaging in charitable activities to rescind their various registrations and obtain registration.

“The purpose of this communication therefore is to urge your office to move with speed to close down the operations of this organisation and further arrest the directors and members of AfriCOG, for contravening the foregoing provision; and with a view to arraigning and prosecuting them in a competent court of law,” Mr Mohamed says.

Mr Mohamed further instructs all the directors of AfriCOG to cease all operations with immediate effect until the organisation acquires a certificate of registration.

POLL LINK

And just like he did with the Kenya Human Rights Commission case, Mr Mohamed asks the Central Bank of Kenya to freeze all bank accounts belonging to AfriCOG.

The board’s moves have touched off a storm and earned it serious lashing on social media, with several critics suggesting that it is frustrating NGOs purported to have reproached the government before, during and after recently concluded General Election.

Just before the August 8 polls, AfriCOG Executive Director Gladwell Otieno had asked the courts to compel the Independent Electoral and Boundaries Commission to open up the voters register for public scrutiny.

She partly won the battle after the commission told the court that the register was already open online.

On Aug 12, KHRC Chairman Makau Mutua, who is also among the founders of the rights watchdog, tweeted that he would never recognise the re-election of President Kenyatta.

He said, “The sins of 2013 have been compounded. That’s why as a matter of my conscience I can’t – and won’t – recognise Uhuru Kenyatta as president”.

COURT

After the notice of deregistration of the commission, Prof Mutua said Mr Mohamed had no legal authority to deregister KHRC as the “High Court last year rejected these false charges and ordered him to cease and desist”.

High Court judge Joseph Onguto had on April 29, 2016 declared a similar attempt to deregister the KHRC as unconstitutional.

Judge Onguto faulted the NGOs Coordination Board for wrongfully deregistering the commission as well as threatening an investigation against it.

Earlier in the month, the board deregistered an NGO associated with Rosemary Odinga, daughter of ODM leader Raila Odinga, and recommended that its account be frozen.

Mr Fazul Mohamed wrote to the chairperson of Key Empowerment Foundation Kenya to say it had been de-listed on August 4.

Ealier, Mr Mohamed, whose academic papers are in question, froze the accounts of the Kalonzo Musyoka Foundation, dissolving its board for alleged failure to account for Sh196 million.

The Kalonzo Musyoka Foundation has since sued the board.

Mr Mohamed has continued to run the NGOs board even after being declared unfit to hold public office.

READY… OR NOT? The Register of Voters – Where We Are One Week Ahead of Election Day

As the gateway to the ballot box, voter registration and the resulting Register of Voters is a highly sensitive and vital part of any electoral process. In Kenya, voter registration has long been the subject of serious, contentious debate. In 2013, there were a series of unresolved questions around the Register, including:

• What explained the increase in the number of registered voters (+12,509) between the publication of the provisional figures, after which registration was supposed to be closed, and the publication of the final figures?
• Why were there such stark differences in the changes that had been made in party strongholds (See Table 1)?
Download Full Report Here

AfriCOG case to open up voter register for scrutiny set for Tuesday (Capital FM – July 21, 2017)

By RACHEAL MBURU, NAIROBI, Kenya, Jul 21 – AfriCOG case seeking to compel the Independent Electoral and Boundaries Commission to open up the voters register for public scrutiny will be heard from next Tuesday.

Judge George Odunga fixed the hearing date after IEBC and the Jubilee Party which have been enjoined as interested parties sought to be given time to respond to issues raised in the petition.

Activist Gladwell Otieno wants the polls body directed to gazette the final register per polling station ahead of the General Election.

Also sought are orders stopping the electoral agency from distributing the voters register to Returning Officers pending determination of the suit.

Otieno is asking the court to grant the orders over claims that there are inconsistencies in the voters register in certain regions.

Otieno says Under the Elections Act, the Commission is required to open up the register 90 days to the election date.

In addition, the NGO’s founder wants the electoral body prohibited from deploying the voters register for use in the General Election before it is subjected to public inspection.

She argues that inspection of the register will enable her to scrutinise and ascertain the actual registered voters.

AfriCOG has faulted IEBC for failing to publish the voters register and in so doing posing a threat to the exercise of the right to free, fair and democratic elections

IEBC on the spot over elections preparedness – Nation Media

The electoral commission is on the spotlight over its preparedness to hold credible elections with only 19 days to go even as it insists it is ready for the exercise.

A second edition of a report dubbed “Ready or not?” that assesses pre-election readiness of the country, says the Independent Electoral and Boundaries Commission (IEBC) is time barred and needs to move with speed on key and critical issues touching on Presidential ballot papers, voter register, electronic relaying of results and efficiency of its electronic voting kits.

The report released on Tuesday in Nairobi was prepared by the Africa Centre for Open Governance (AfriCOG) and Kenyans for Peace with Truth and Justice (KPTJ).

In the report, the two lobbies demand that the commission publicly tests electronic system technology that will be used during the voting day.

POSTPONE ELECTIONS

The testing, they said, should include simulations of what will happen if the system fails. It also demands that IEBC publishes voters’ register, which should have been done 30 days before the election.
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Already, the Opposition, National Super Alliance (Nasa), has moved to court over the matter, accusing IEBC of failing to ensure there is complementary technology to act as backup during the elections as required by the law

During the hearing of the case at the High Court, the Opposition said it wants the election postponed should the electronic system fail on polling day.

But IEBC CEO Ezra Chiloba said that in the biometric voter identification in the May-June verification of register, the 45,000 KIEMS (Kenya Integrated Election Management System) kits registered a 98.8 per cent accuracy.

NETWORK PROBLEMS

The kits, he said, will be continuously tested specifically, three days to the election.

Mr Chiloba added that to ensure the smooth electronic transfer of results, the commission is working closely with three mobile network providers to expand their network.

In remote areas that are not covered by the telecommunication firms, satellite technology will be used.

“We have mapped close to 92 per cent of the country. This will ensure that all results are transmitted electronically. In the likely event there is network outage we will move to a place that is covered to relay the results,” Mr Chiloba said.

COMPLEMENTARY MEASURES

He added: “All through, our tests and during the verification exercise itself, the performance on biometric verification by the kits was 98.8 per cent accuracy which is different from 2013.”

In the event that voter’s details are not retrievable from the Kiems through biometric means due to various reasons, he explained, IEBC has put in place complementary measures embedded in the system.

“We will run an alphanumeric search in the Kiems’ complimentary voter identification register. If this also fails we will use the printed register after inviting agents representing political parties.

“There will be records showing how many people were identified using alternative mechanisms. Given these procedures we expect a minimal number of such individuals being identified as such on the polling day,” he said.

DIRECT PROCUREMENT

Mr Chiloba said the commission will this week publish the voter register for public inspection, but with truncated information in regards to ID Numbers and voter’s images due to privacy reasons.

On the presidential ballot papers crisis, Mr Chiloba said the commission was considering direct procurement should the Court of Appeal not rule in their favour in the case where the High Court nullified the tender awarded to Al Ghurair Printing and Publishing LLC, o grounds that there was no public participation.

IEBC was directed to come up with a mechanism for public participation even as the firm prints the ballot papers for the other elective seats.

“There are conditions that justify that process. We have explored options and we have a basis as to where we could go when it comes to direct procurement. We can justify the identification of a company,” he said.

IMMEDIATE ATTENTION

He added: “We are already thinking ahead of the Court of Appeal ruling. In the real sense we are not waiting for the Court of Appeal decision. This is the first time in public procurement that public participation is being demanded of public entities. It’s an experiment on the wrong specimen, the IEBC, a few days to the election.”

The report further cites increased voter education and post-election dispute resolution as some of the issues that need immediate attention by the commission to ensure a free and fair election.

On voter registration, it recommends that the commission publicizes the pre-audit voters’ register data at all levels so that independent observers can understand the changes.

Most importantly, the Civil Registration Department has been asked to investigate why many deaths, which were previously captured in the IEBC voter register but later removed, go undocumented.

“The Civil Registration Department must also create and maintain a system through which it sends IEBC updated data on a regular basis so that the register of voters can stay updated,” it says.

Link to the story

AfriCOG asks court to compel IEBC publish voters list – Nation Media

Africa Centre for Open Governance (Africog) director Gladwell Otieno has moved to court seeking to have the electoral agency compelled to publish and open up the voter register for public inspection as clustered per polling stations.

Ms Otieno who has sued the Independent Electoral and Boundaries Commission (IEBC) also wants it to take into consideration submissions by concerned persons as required by law and revise the register of voters.

In the case documents, she claims that the failure to do so threatens the right to a free, fair and democratic polls come August 8.

She argues that if that is complied with, the electoral process will be transparent, accountable and accurate.

She also wants the IEBC to be temporarily stopped from distributing a purported register of voters to returning officers for use in the General Election before being subjected to public inspection in a reasonable time frame.

Compel IEBC to allow public scrutiny of voters register, activist tells court – The Star

A new legal challenge aimed at forcing the IEBC to open the voters register for scrutiny has been launched at the High court.

Activist Gladwell Otieno petitioned the court on Tuesday to compel the electoral agency to publish the register for public inspection.

The activist told the court there are inconsistencies in numbers declared by the IEBC.

“There are noted inconsistencies in numbers declared by IEBC. It is only fair and just the actual status is ascertained,” she says in her application filed just 20 days to the August 8 voting day.

“It will be fair and just to allow the register voters to be subjected to public inspection…This will enable the applicant to ascertain the actual number of registered voters in affected regions.”

Otieno, who is Africog founder and executive director, also wants the court to prohibit the commission from deploying the register before it is scrutinised.

She is also seeking to compel IEBC to gazette the final register per polling station but wants it stopped from distributing the register to returning officers pending determination of the case.

Otieno’s argument is that Section 6 of the Election Act requires that the register be opened up for inspection within 90 days to a general election.

But she noted that despite her requests, the commission has declined to publish the register as required by law or even take into account submissions by concerned persons.

“The continued non-observance of provisions of the law constitute a threat to the rights and freedoms for a free and fair election.”

She noted failure by the electoral agency to meet scrutiny demands would be an affront to principles of the electoral system as espoused in article 81 of the constitution.

The applicant further says she has legitimate expectations that the commission will, at all times, be guided by the law.

Otieno wants the suit expedited to enable “an electoral process that is transparent and administered in an impartial manner”.

AfriCOG wants IEBC ordered to open up voters roll for scrutiny – Capital FM

By RACHEAL MBURU, NAIROBI, Kenya, Jul 18 – AfriCOG Executive Director Gladwell Otieno now wants the Independent Electoral and Boundaries Commission compelled by the courts to open up the voters register for public scrutiny.

In the application, Otieno is seeking orders directing the polls body to gazette the final register per polling station ahead of the General Election.

Also sought are orders stopping the electoral agency from distributing the voters register to Returning Officers pending determination of the suit.

Otieno is asking the court to grant the orders over claims that there are inconsistencies in the voters register in certain regions.

The applicant argues that under the Elections Act, the Commission is required to open up the register 90 days to the election date.

In addition, the NGO founder wants the electoral body prohibited from deploying the voters register for use in the General Election before it is subjected to public inspection.

She argues that inspection of the register will enable her to scrutinise and ascertain the actual registered voters.

AfriCOG has faulted IEBC for failing to publish the voters register and in so doing poses a threat to the exercise of the right to free, fair and democratic elections.

“IEBC without any basis has refused to publish and open up the voters register for public inspection as required by law,” Otieno states.

Link to the story

IEBC sued over voters’ register – The Star

The electoral commission faces a fresh legal hurdle after an activist petitioned the High Court to compel the IEBC to open the voters’ register ahead of the August 8 poll.

Activist Gladwell Otieno yesterday told the court to ask the electoral agency to publish and open the register for public inspection as clustered per polling station.

Otieno told the court the register, as it is today, has inconsistencies in the numbers declared by the commission as the actual figures of registered voters.

With only 19 days left to the General Election, Otieno who is the founder and Executive Director of Africog, also wants the court to prohibit the commission from deploying a voters’ register for use at the election before it is subjected to public inspection.

In addition, she wants the IEBC stopped from distributing the voters’ register to returning officers pending determination of the case.

“The continued non-observance of the provisions of the law by the Chebukati-led commission constitutes a threat to the rights and freedoms to have a free and fair election,” she said.

She said failure by the electoral agency to open the voter register is an affront to the principles of the electoral system as expounded in Article 81 of the Constitution.

Otieno wants the suit to be expeditiously heard for Kenyans to have “a transparent electoral process”.

Link to the story

Activist Gladwell Otieno sues IEBC for failing to make voters’ roll public – Standard

The electoral commission has been dragged to court for failing to make public the voters’ register.

The petitioner, Gladwell Otieno, the founder and Executive Director of Africa Centre for Open Governance (Africog), argued that failure by the Independent Electoral and Boundaries Commission (IEBC) to open up the register for public scrutiny after the audit by KPMG, is a threat to free, fair and credible elections.

“There are noted inconsistencies in numbers of registered voters in certain areas. It is only through inspection of the register that we will be able to scrutinise and ascertain the actual number of registered voters but the commission has refused to publish it,” said Ms Otieno.

Through her lawyer Willis Otieno, Otieno wants the IEBC compelled to release a register of voters per polling station and allow public scrutiny of any errors to be corrected before August 8 elections.
She also wants the commission restrained from distributing the voter registers to constituency returning officers until the suit is determined. ALSO READ: Nightmare for IEBC as court cases rise

“The petitioner is apprehensive that time may run out before the public have a chance to scrutinise the register and sufficient time given for revision taking into account public views and comments,” said the lawyer.

An audit report by KPMG had discovered several discrepancies in the voter register, with 88,602 dead voters being deleted from the list. Ms Otieno stated in her affidavit that the commission was supposed to open the register of voters for inspection 60 days to elections for a period of one month, after which they were to publish a list of registered voters per polling station.

She said despite numerous requests to the IEBC to be supplied with the voter register, the commission had refused, making her apprehensive that some discrepancies might be in the register. According to Otieno, verification of biometric data to confirm the details of a registered voter is different from a public inspection of the register.
“What we want is for the public to confirm the details per polling station as reported by the commission and ensure that those appearing in the register are indeed those registered in the particular polling station,” she said. She accused IEBC of disregarding electoral laws by refusing public scrutiny of the register.

Read more at: https://www.standardmedia.co.ke/article/2001248240/activist-gladwell-otieno-sues-iebc-for-failing-to-make-voters-roll-public

Activist Gladwell Otieno sues IEBC for failing to make voters’ roll public (Standard Media -July 19th, 2017)

The electoral commission has been dragged to court for failing to make public the voters’ register. The petitioner, Gladwell Otieno, the founder and Executive Director of Africa Centre for Open Governance (Africog), argued that failure by the Independent Electoral and Boundaries Commission (IEBC) to open up the register for public scrutiny after the audit by KPMG, is a threat to free, fair and credible elections.

“There are noted inconsistencies in numbers of registered voters in certain areas. It is only through inspection of the register that we will be able to scrutinise and ascertain the actual number of registered voters but the commission has refused to publish it,” said Ms Otieno.

Through her lawyer Willis Otieno, Otieno wants the IEBC compelled to release a register of voters per polling station and allow public scrutiny of any errors to be corrected before August 8 elections. RETURNING OFFICERS She also wants the commission restrained from distributing the voter registers to constituency returning officers until the suit is determined. “The petitioner is apprehensive that time may run out before the public have a chance to scrutinise the register and sufficient time given for revision taking into account public views and comments,” said the lawyer.

An audit report by KPMG had discovered several discrepancies in the voter register, with 88,602 dead voters being deleted from the list. Ms Otieno stated in her affidavit that the commission was supposed to open the register of voters for inspection 60 days to elections for a period of one month, after which they were to publish a list of registered voters per polling station. She said despite numerous requests to the IEBC to be supplied with the voter register, the commission had refused, making her apprehensive that some discrepancies might be in the register. According to Otieno, verification of biometric data to confirm the details of a registered voter is different from a public inspection of the register. “What we want is for the public to confirm the details per polling station as reported by the commission and ensure that those appearing in the register are indeed those registered in the particular polling station,” she said. She accused IEBC of disregarding electoral laws by refusing public scrutiny of the register.

Read more at: https://www.standardmedia.co.ke/article/2001248240/activist-gladwell-otieno-sues-iebc-for-failing-to-make-voters-roll-public

An Assessment of Kenya’s Preparedness for the 8 August 2017 General Election – A Summary of Key Findings and Recommendations

Despite the hope that marked the 2013 elections in Kenya, a wide range of irregularities,inconsistencies and errors during multiple phases of the electoral cycle left the country furtherdivided and without… Read More »An Assessment of Kenya’s Preparedness for the 8 August 2017 General Election – A Summary of Key Findings and Recommendations

‘Lawfare’ pushing young democracies to hard power strategies (Daily Nation – February 10, 2017)

No mature democracies, we are told, have ever fought a war against each other.

Although democracy promotion is seen as the surest path to world peace and security, democratic transitions have given rise to instability rather than peace.

Here, the declaration of an election is becoming more and more like a declaration of war.

Mr Raila Odinga’s recent unilateral declaration that Kenya will go to a third poll in less than a year on August 2018 has the potential of heightening tension.

A week ago, this column highlighted the emergence of Africa’s peculiar “deep state” with its elements deeply embedded in civil society, media, Judiciary and even national security as one factor pushing emerging democracies to the brink of war (SN, February 4, 2018).

JUDICIARY

The increasing use of judicial systems as weapons of political conflict has given rise to a new form of warfare popularised as “lawfare” — itself a portmanteau that blends law and warfare.

Although the term lawfare is yet to enter public debates on democratic peace in Africa, the phenomenon is profoundly transforming judiciaries into weapons in the hands of political strategists.

Not surprisingly, the concept has increasingly become a subject of numerous academic works, including Lawfare: The War Against Free Speech (2011) by Brooke Goldstein and Aaron Eitan Meyer and Lawfare: Law as a Weapon of War (1st Edition, January 2016) by Orde Kittrie.

Indeed, after President Donald Trump’s election in 2016, the hitherto little known Lawfare blog, established on September 2010, has become a necessary read.

Like terrorism, lawfare waged in courts is a form of asymmetrical warfare and part of what has been theorised as the “Fourth-generation warfare” (4GW) — defined simply as conflict that blurs the line between war and politics, combatants and civilians.

SELFISH INTERESTS
In an influential 2001 paper, General Charles Dunlap, currently the Executive Director of Duke Law School’s Centre on Law, Ethics and National Security, defined lawfare as “the use of law as a weapon of war”.

Governments are the targets of this asymmetric warfare, which primarily seeks to use the legal system to damage or delegitimise an enemy, tie up their time or to win a public relations victory.

While lawfare warriors project themselves as victims of residual authoritarianism, their aim is never a pursuit of justice but a counterproductive perversion of the law through the abuse of the judicial system to undermine the very principles they claim to fight for: The rule of law, the sanctity of innocent human life, and the right to free speech.

As the newest feature of 21st century combat, lawfare signifies an effort to “exploit democratic values to defeat new democracies”.

It thrives on legal principles dishonestly and strategically to “handcuff the state”, in many cases succeeding in delegitimising the state’s right to defend itself or to crack down on rebels and anarchists.

THE HAGUE
Ironically, the blissful rise of universal jurisdiction in the 21st century has also created new arenas of lawfare.

As the cases of Kenya, Libya, Sudan and Ivory Coast have shown, The Hague-based International Criminal Court (ICC) has morphed into a trident weapon of manipulative politics in the hands of former colonial powers rather than an instrument of democratic peace and justice.

In Kenya, the country’s extensive Bill of Rights as the hallmark of the country’s 2010 constitution, one of Africa’s most liberal, has been manipulatively deployed by human rights fundamentalists to advance partisan politics and undermine state security.

Over the last one decade, opposition parties such as ODM in Kenya have adopted the state of the art technology and honed strategies in modern information warfare as part of its lawfare edifice.

After the 2007-2008 post-election dispute, ODM hardly used lawfare as a political strategy, preferring street protests arguing that the courts were under the thumb of the Government.

CIVIL SOCIETY
This position changed radically after the March 2013 election.

Since the 2013 elections, the courts and the law increasingly became important arenas of political struggle.

Pro-opposition civil society groups have used lawfare tactics to delegitimise the government, make it unworkable or tie down its time.

Organisations such as AfriCog championed the ICC case against the ruling Jubilee leadership.

Ahead of the 2017 election, they filed a barrage of cases in courts against the Independent Electoral and Boundaries Commission (IEBC) that targeted various aspects of the electoral process including tallying and announcement of results, voter identification gadgets and the voter register.

By August 2017, Kenya’s lawfare warriors in the human rights wing of civil society and opposition operatives had lodged no less than 200 legal suits against the IEBC.

IEBC UNDER SIEGE
On July 19, civil society activists sued the IEBC over the procurement of the Biometric Voter Register (BVR) gadgets.

At the start of July 2017, a month before the election, IEBC was facing 20 cases filed in courts by the opposition and allied civil society extremists.

A few days before the election, AfriCog sued IEBC over the voters’ register.

Shortly after the election, human rights organisations announced that they would file a petition against the election of President Uhuru Kenyatta for a second term with 54 per cent of the vote.

The Supreme Court’s ruling on September 1, 2017 that annulled President Uhuru Kenyatta’s electoral victory in the August 8, 2017 poll brought lawfare to its acme.

It also unveiled the capture and weaponisation of Africa’s judiciaries by elements of the deep state as the salient feature of lawfare.

SECURITY
Lawfare has intensified in the aftermath of the January 30, 2018 “swearing-in” of Odinga as “people’s president”.

In reversing this trend, Kenya has had to make hard national security choices to ensure stability.

Lawfare by opposition and allied civil society is gradually pushing the state to increasingly use hard power in the crack down against the masterminds of the illegal “oath”.

Universal jurisdiction, Henry Kissinger once opined, risks “substituting the tyranny of judges for that of governments”.

Lawfare is the best expression of the emergent phenomenon of opposition authoritarianism behind Kenya’s 2017 post-election rebellion by Odinga’s National Resistance Movement (NRM).

However, it will take more than hard power to secure democracy from the vagaries of lawfare.

It has to harness the combined technologies of “soft power” (“ability to affect others by attraction and persuasion”) and “sharp power” (communication strategies warfare).

Prof Kagwanja is former Government Adviser and currently Chief Executive of Africa Policy Institute

Securing the 2017 General Elections

[pdf-embedder url=”https://africog.org//wp-content/uploads/2017/05/KNCHR-Statement-on-Securing-the-2017-General-Elections.pdf” title=”KNCHR Statement on Securing the 2017 General Elections”]

Harsh verdict delivered against ICC

Civil society organisations have blamed the International Criminal Court (ICC) for succumbing to political pressure and recommend that it should be restructured. The African Centre for Open Governance (Africog) and Kenyans for Peace with Truth and Justice (KPTJ) said in their report that it was mistake to allow President Uhuru Kenyatta and his deputy William Ruto to run for office when they facing criminal charges at the ICC. The report was published to coincide with the ongoing ICC Assembly of State Parties (ASP) at The Hague. The report, Impunity restored?
Lessons learned from the failure of the Kenyan cases at the ICC, took stock of cases involving Kenyans in the ICC. Domestic politics “As a matter of Kenya’s constitutional law, Uhuru Kenyatta and William Ruto, should not — as individuals facing the most serious charges known to law — have been able to run for president and deputy president of a country that is a member of the ICC,” the report said. It noted that after their election, the pair were able to use the instruments of State power “to obstruct all attempts by the Office of the Prosecutor to collect evidence from State agencies in Kenya.” The Office of the Attorney General in effect acted as counsel for the accused, rather than a State Law Office, the report noted. “Being the president and deputy president, the two accused were able to use the machinery of the State to identify and then target witnesses; to compromise them, to intimidate them.”
On September 19, ICC’s trial chamber confirmed that Kenya had not complied with its obligations to co-operate with the court and referred the matter to the ASP. It was noted that the court was vulnerable to domestic politics and international diplomacy. According to the authors of the report, propaganda was used to “first, to outflank and second, to diplomatically undermine both the Office of the Prosecutor and the Court.” The report says it is probable that the decision by the court to excuse both Kenyatta and Ruto from continuous presence at trial was a concession to AU pressure. African countries were accused of hypocrisy, because although they were opposed to the court handling their cases, it is these nations that had referred these cases to the court.
Africog and KPTJ said it was Ruto who coined and popularised the incantation: ‘Don’t be vague, let’s go to The Hague’. “Even more interesting is that Jean Ping, who was declared to have lost the presidential election in Gabon resulting in the violence that led to the request for the ICC to intervene, is a former chairperson of the AU Commission.” “He vehemently opposed ICC investigations in Africa when he was at the AU but now supports the call for the ICC to investigate alleged atrocities committed in Gabon. This clearly shows that what African states seek in the ICC is a court that will be at their disposal when it suits them, but that they will demonise and undermine it when it does not,” the report said.
The report also teared into the work of prosecution, saying it could have done a much better job in the Kenya cases. It blamed the prosecutor for failing to realise that those charged would try to obstruct ICC’s investigations. “Former ICC Prosecutor Louis Moreno Ocampo failed to appreciate the political realities of Kenya. In the haste to prosecute the ‘big-fish’ Ocampo failed to grasp the incestuous links, and the mendacity of Kenya’s political elite,” it says. The ICC was accused of failing to assist victims of the violence in Kenya. The report comes at a time when over 200 civil society organisations have written to Presidents of African State Parties asking them not to withdraw from the ICC. The letter endorsed by six Kenyan organisations—including KPTJ and Africog—comes hot on heels of notices by South Africa, Burundi and Gambia to pull out of the ICC

Read more at: http://www.standardmedia.co.ke/article/2000224072/harsh-verdict-delivered-ag

AfriCOG asks Kenyans what they think of corruption levels in various ministries

1% of Kenyans believe that corruption is prevalent at the office of the Deputy President while 46% feel that it thrives in the office of the President. A recent opinion poll survey conducted by InfoTrack Company and sponsored by the Africa Centre for Open Governance (AfriCOG) and Kenyans for Peace with Truth and Justice (JPTJ), also shows that 58 % of Kenyans feel the country is headed in the wrong Direction.

Majority feel Kenya is going in the wrong direction: Poll

A majority of Kenyans feel the country is headed in the wrong direction, with urban dwellers being the most pessimistic, a new opinion poll has shown.

A larger number of Kenyans also think Deputy President William Ruto’s office is corrupt than to those who think the same of the President’s office.

The latest numbers show that 58.2 per cent of Kenyans feel the country is headed to the dogs, a five per cent rise from a similar study by InfoTrak in March.

Nairobi expressed the highest levels of dissatisfaction with the situation (80 per cent), followed by western (75 per cent) and Nyanza (71 per cent) regions.
But the majority of people in eastern Kenya felt things are getting better while many in north eastern could not make up their minds.

Corruption is still the biggest pain in the side for most Kenyans, with 89 per cent feeling the police are “almost always” corrupt.

Other culprits are unemployment, cost of living, insecurity, poor health care and ineffective devolution.

A majority of Kenyans (54.6 per cent) felt the Jubilee government is to blame for the decline, with 19 per cent blaming “everybody”. However, some respondents, especially those in central (19.7 per cent) and north eastern (15.2 per cent), placed the blame on the opposition.

County governments elicited a positive reception in areas that were previously marginalised, but 78 per cent of Kenyans still feel that corruption is prevalent in the new governments, with the county executive and assembly leading the pack.

HIGH LEVELS OF CORRUPTION

AfriCOG Executive Director Gladwell Otieno said the high levels of corruption are worrying and have led to “criminalisation of the State.”

“The State seems to have been captured by a small group of people who are using it for their own benefit. We see police officers amassing fortunes that cannot be accounted for. Our police seem to have a poor understanding of what constitutes conflict of interest,” she said during the launch of the survey report.

She pointed to the recent use of State House as a venue for a merger of political parties as an example of “blatant use of state resources for private purposes”.

Most Kenyans, 54 per cent, also admitted they would readily pay a bribe if confronted with a situation that requires it.

Researchers had a difficult time finding Kenyans who would admit to personally paying bribes, although many reported knowing friends and relatives who have. Ms Angela Ambitho, the CEO of InfoTrak, attributed this reluctance to self-preservation.

“We decided to go with the figures of people reporting knowledge of friends and peers giving bribes as they were more representative of the reality on the ground,” she explained.

Corruption tops citizens concerns-Infotrak

By KBC Reporter.

72 percent of Kenyans have no trust that the Ethics and Anti-Corruption Commission have the nerve to fight graft in the country.

The latest survey conducted by pollster Infotrak cited bribery as the most common form of corruption in the country, with the police force leading in graft.

According to the recently concluded survey, 73 per cent of the Kenyan population feels that corruption is on the increase.

The survey that was conducted between the 31st of May and the 5th of June revealed that bribery was the most common form of corruption in the country, with 88 percent of Kenyans citing the police force as the most corrupt.

35 percent of Kenyans however said they feared reporting bribery cases on account of the repercussions.

The survey sponsored by the African Centre for Open Governance (AfriCOG) also revealed that a majority of Kenyans have little faith in the ability of bodies like the Ethics and Anti-corruption commission to fight corruption with only 38 per cent confident in the commission’s ability to fight corruption

The three topmost issues that Kenyans want the Jubilee government to work on are: The Economy; 65%,

Corruption; 53% & Insecurity; 39%.

In regard to the economy, four key areas were raised: Unemployment and jobs, high cost of living

Vs poor income and poverty. Education and Infrastructure ranked fourth and fifth with 29% and 23.1% respectively

Corruption in Sports Could Kill Kenyan Heritage – The EastAfrican , February 23 , 2016

Kenya’s sporting talent faces imminent death if the government does not take action against doping, bribery and match-fixing, among other graft activities.

A report released Monday by global anti-corruption watchdog Transparency International (TI) says that while sporting events generate huge revenues, they are also attracting cartels, which means athletes gain little.

In its Global Corruption Report, TI says corruption in sport manifests in the appointment or election of officials, financing of sporting activities, the planning of major events and match-fixing.

The watchdog says that with global sporting events generating at least $145 billion (Ksh14.5 trillion) a year, it makes sport attractive to corruption but with limited checks.

The report, a 390-page document, was inspired by the indictment of nine former global football management officials by the US for corruption related offences.

It led to the resignation of football organisation Fifa president Sepp Blatter as other officials were banned from the sport. Athletics and tennis are also facing corruption claims.

But in Kenya, Bob Munro, the chairman of local football club Mathare United argued that graft in the sport could ruin the future of the youth and in turn make it difficult to fight the vice in other sectors.

“The huge rise in revenues and lack of external as well as internal accountability pose a serious threat to sport as a force for good.

“Corrupt sports officials are not just stealing money. They are also stealing the future of our youth, the future of our athletes and the future of our sports,” Mr Munro, who said his childhood character was shaped by playing local football with immigrants in Canada, writes in one of the chapters titled “Sport as a force for good. Tackling corruption in sport can reinforce anti-corruption efforts in other sectors.”

And to participants gathered in a Nairobi hotel during the launch of the report in Kenya, the government was blamed for doing little even as officials plundered funds, athletes cheated and matches fixed.

Transparency International-Kenya chairman Richard Leakey criticised government officials for turning a blind eye to sports management, something he said could ruin Kenya’s heritage.

Government officials not present

“It is, to me, tragic that in areas such as sport which since independence have represented Kenya’s image and is Kenya’s most important outreach, we face issues and when we come to present a report, our government officials are not present,” he said.

“It is, to me, a great shame. It is ruining our country in so many ways. Sport is now being tarnished,” added Dr Leakey, who took issue with the government for ignoring “a big challenge.”

There are currently claims that Kenyan athletes have continually doped and the country is now on the watch list.

Kenya could be banned from the 2016 Rio Olympics if it doesn’t convince the World Anti-doping Agency (Wada) within two months that it has enhanced checks against doping.

A banned athlete recently accused Athletics Kenya CEO Isaac Mwangi of demanding a bribe so the length of the ban could be reduced. Mr Mwangi denied the claims but stepped aside for investigations.

Demand and supply

Dr Leakey had finished his speech and left the venue before a representative of Sports Cabinet Secretary Hassan Wario arrived at the event to deny claims the government was looking the other way.

“I wish to state that corruption is not a government policy,” said Mr Martin Wekesa, who read Dr Wario’s speech.

“Corruption has two sides, the demand side and the supply side. And while the demand side can be attributed to the government, the corporate sector is the supplier.

“The best strategy is to focus on both sides,” he argued, adding the government has been demanding accountability from sports managers.

Representatives from athletics and rugby associations, the Kenya Premier League, The National Olympic Committee of Kenya (Nock) and the Africa Centre for Open Governance (Africog) were present, and they all seemed to agree that corruption in Kenyan sport is on the rise.

“When we are banned, it doesn’t mean that only athletes will be affected, it surprises me that everyone else is quiet. This is a national issue that we must all face,” Barnabas Korir, an executive committee member at Athletics Kenya said.

Dr Richard Omwela, who chairs the board of the Rugby Union added: “Sponsors have told me, ‘Richard, we are not coming back because we believe your board is corrupt.’”

“I am trying to get them back but there will come a time when I will say enough is enough because I do not earn a living from rugby. I am trying to do good for the society.”

Ruto – ICC Bureau to Decide Fate – Star, November 23 , 2015

DEPUTY President William Ruto is keeping his fingers crossed as the Assembly of States Parties Bureau makes a critical decision regarding his crimes against humanity charges at the ICC.

However, ahead of the big decision, there are already concerns about why Attorney General Githu Muigai did not travel to The Hague – as the State sponsored several politicians to the weeklong ASP meeting.

“A Kenyan ambassador who normally leads the country’s engagement with the ICC complained that these politicians had undone months of diplomacy that he had put in place,” George Kegoro, KHRC Executive Director, wrote in the Sunday Nation.

Kenya is pushing for the withdrawal of recanted testimony against Ruto as well as a request to the ASP to appoint an independent team to audit the Prosecutor’s witness recruitment processes in Kenya.

However, on Friday, Western countries teamed up with powerful global NGOs to oppose the Kenyan request before the matter was refereed to the 18-member ASP Bureau.

The Bureau is expected to communicate its decision to the ASP plenary on Tuesday, either rejecting, adopting or amending the Kenyan proposal.

Foreign Affairs Cabinet Secretary Amina Mohammed said their diplomatic charm offensive had not flopped and the Kenyan agenda could still succees.

“We are quite comfortable with where we are right now,” Amina emphasised.

On Friday, at least 33 countries, including a number of EU states, Switzerland, Australia, Canada and Costa Rica rejected the Kenyan request, saying it would undermine the ICC’s judicial independence.

“Hearing all voices is important, but it would be inappropriate to express views under active consideration by the ICC,” an Australian representative told the ASP.

The 18-member ASP Bureau comprises mostly Western countries and many doubt Kenya will succeed in its diplomatic offensive.

Current members of the ASP bureau are Chile, Colombia, Costa Rica, Czech Republic, Germany, Ghana, Hungary, Japan, The Netherlands, Nigeria, Republic of Korea, Romania, Samoa, Slovenia, South Africa, Sweden, Uganda and the United Kingdom.

Kenyan NGOs have teamed up with their counterparts to mount a strong opposition to the pro-Ruto move.

Kenyans for Peace With Truth and Justice, a coalition of more than 30 NGOs, claimed at least eight ICC witnesses in the case against President Uhuru Kenyatta had died under mysterious circumstances.

In a strongly worded statement, Africog chief Gladwell Otieno said the ASP must not allow any decisions that could impact the independence and integrity of the ICC.

Exit Matsanga , Enter Ngunjiri Wambugu – All Africa , August 4 , 2015

It is hard to forget the loud, sycophantic sentiments of Dr. David Nkekorach Matsanga, the dramatic Ugandan who made it his business to defend President Uhuru Kenyatta and Deputy President William Ruto and by extension Kenya, against the ‘ills’ of the ICC. Perhaps a clever schemer in the Jubilee administration, hired to make the life of anyone perceived to support the ICC a living hell, came to the realisation that Kenyans had become tired of listening to Matsanga’s shouting.

This explains the change in tact. Introduce a new personality to defend Kenya against the ICC and pit brother against brother and scuttle civil society by causing divisions. Tear down the ‘evil society’ from within. It’s an almost brilliant plan, but ‘almost’ does not count.

New Kid on the Block

Ngunjiri Wambugu, under the outfit Kikuyus for Change, raised his profile by leading the pro-ICC campaign, helping other civil society organisations to collect 1 million signatures in support of the ICC. Through this act and many of his articles, Ngunjiri was seen to be a strong proponent of the ICC.

Then in a sudden about-face, Ngunjiri shocked many, and indeed dare I say, committed the ultimate betrayal, by publishing an article in which he urged Kenyans to accept the Uhuru-Ruto presidency, arguing that the ICC was not the solution for justice: “as for the rest of us, especially some of Kenya’s civil society, we must stop crying louder than the bereaved and ask ourselves whether while we are still agitating for justice for 2007, the victims might have moved on”.

Since his grand exodus to the ‘other side’, Ngunjiri has spiritedly defended the Jubilee administration through his regular columns in The Star. He has become more Catholic than the pope. He even unabashedly created an sms platform to compile a list of Kenyans who want the ICC cases terminated. He has, in my view, used the knowledge he gained while working with pro-ICC organisations to relentlessly attack the very groups that let him into the fold and trusted him with their tools of the trade. Yes, a man may change his mind. It is his democratic right, but you cannot tear down another based on the manipulation of truths simply because you have a different opinion.

Brother against Brother

Ngunjiri’s latest attack is against the backdrop of the ICC allowing a local NGO, Africog, to make submissions on Kenya’s lack of cooperation with the ICC. Africog’s submission will explain the context in which the alleged non-cooperation occurred and will highlight the relevant statutory provisions under Kenyan law relating to cooperation with the ICC. Ngunjiri has opposed the ICC’s decision.

In a scathing, bare-knuckled attack, Ngunjiri accuses Africog and Bensouda of colluding to manufacture lies. He asks how the ICC can allow a civil society organisation that clearly has a problem with Uhuru and his government to make observations. Ngunjiri adds, “Africog’s associates tried to stop Uhuru from running for president. When that failed and he (Uhuru) run and won, they challenged his election. When that failed, they used the ICC to run a concerted international campaign with the single purpose of delegitimising his government.”

In a protest letter to the ICC, Ngunjiri demands to know why Africog filed its application on the last day of the period allowed by court rules, a move that denied anyone the chance to challenge its application. Insultingly, he wondered why the judges were quick to respond. He suggests that the judges are never quick to make a decision in such matters.

One media outlet frames the attack by Ngunjiri against Africog as an NGO row, pitting one civil society organisation (CSO) against the other. It now appears that CSOs are very divided on the ICC issue. It is naïve to assume that civil society should be homogenous, but never has the divide been so pronounced as it is now. The grand plan therefore unravels itself: create massive confusion within the CSOs, by using one of their own, alienate a few and delegitimise their actions.

Whither civil society?

While politicians dominate the public space through political rallies and state functions, civil associations employ tactics to get public attention, especially through the media. So when the ‘divide’ is openly displayed and manipulated in public, then the sector looks weak, divided and undermined.

US President Barack Obama, in his speech to Kenyans on 26 July at the Safaricom Kasarani Stadium, highlighted the important role of civil society in maintaining the democratic space in the country. It is surprising that a section of Kenyans, describing civil society as ‘neo-colonial tools’, forget the important watchdog role played by NGOs. They actively protect and promote citizens’ rights, including freedom of speech, which is now being used to insult civil society. Civil society activists should find solace in the fact that history does not forget.

The ICC debate is for me a passing cloud, a very challenging time for civil society, but the few who choose to, must remain strong and steadfast. This is the hallmark of civil society, the unrelenting will to challenge that which is not in the best interests of the people. More so when you are branded the ‘enemy of the people’.