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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.

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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.

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”.

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.

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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”.

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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

In a brazen breach of diplomatic protocol, a top adviser to Kenya’s President Uhuru Kenyatta threatened civil society activist Gladwell Otieno on the sidelines of the International Criminal Court gathering… Read More »Kenya: Top official threatens civil society activist at ICC

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.”

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.

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’.

The Appeals Chamber of the International Criminal Court has granted a local non-governmental organisation amicus curiae (friend of the court) status in Prosecutor Fatou Bensouda’s case against Kenya over alleged non-cooperation.

But the decision has been opposed by another civil society organisation, setting the stage for what could play out as a major contest between two Kenyan organisations on the international scene. An amicus curiae is not a party to a case but offers information bearing on the case without being solicited by any of the parties to assist a court. The decision by the ICC Appeals Chamber to allow the Africa Centre for Open Governance (AfriCOG) to submit observations in Bensouda’s case resulting from the ICC versus President Uhuru Kenyatta case has been challenged by Change Associates Trust. The Trust has written to the President of the Assembly of State Parties (ASP) over what it terms a “deliberate and calculated witch-hunt”. Bensouda has filed a case seeking to have Kenya referred to the ASP for non-cooperation in relation to Uhuru’s case, which she terminated last year for lack of evidence. In a terse letter to ASP President Sidiki Kaba — copied to members of the United Nation’s Security Council, Africa Union member states and their European Union counterparts — Change Associates says the manner in which AfriCOG was admitted as amicus curiae was suspicious and based on misinformation. The civil society group argues that to win its application, AfriCOG colluding with Bensouda, presented falsehoods to the Appeals Chamber on the current state of Kenya, portraying it as still reeling from the 2007/2008 post-election violence.

Through its executive director Ngunjiri Wambugu, Change Associates questions 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. Wambugu says the application ought to have been rejected on those grounds. “We do not have a legal avenue to raise these issues against the AfriCOG application, which is what we would have preferred. This is because the CSO (civil society organisation) deliberately filed its application on the very last day allowed by the court,” says Ngunjiri in his letter dated May 28. The protest letter is also copied to the ICC President, Lady Justice Silvia Fernandez De Gurmendi; first vice president, Lady Justice Joyce Aluoch; and second vice president, Lady Justice Kuniko Ozaki. The group has urged the ASP president to intervene and ensure that an injustice is not delivered through the machination of Bensouda and AfriCOG. It complains about what it alleges is an attempt by Bensouda, using AfriCOG, to make Kenya an accused person before the court through the Uhuru case.

“AfriCOG’s entire set of observations seems to be accusations on the Government of Kenya with no connection to the prosecution’s case against Kenyatta. The ICC prosecutor is using the NGO to gradually build up a case against the Kenya Government under the guise of prosecuting Kenyatta’s case, which she admits has collapsed,” says Ngunjiri.

But AfriCOG executive director Gladwell Otieno argues in her submissions that it was Kenya’s apparent non-cooperation that led to the termination of Uhuru’s case and caused her to seek the amicus status. Otieno accuses the Government of frustrating Bensouda’s efforts to obtain crucial evidence. “Non-cooperation by the Kenyan Government has played its part in ensuring that the case against Mr Kenyatta was terminated and as such, the Applicant is fully cognisant of the importance of genuine state cooperation and the impact of non-cooperation on future cases at the ICC,” Otieno says in her request. She also accuses Attorney General Githu Muigai of misleading the trial court that there was no basis on which the State could cooperate with the requests made by Bensouda, But according to Ngunjiri, while amicus status is granted to a party that will provide specific expertise on particular topics, to add value to the case, the same cannot be said of AfriCOG on the current case.

“This (lack of providing expertise information) was the basis on which various applications for amicus curiae observations, including the ones by the CSO network and Kituo Cha Sheria on the case of the prosecutor versus William Ruto and Joshua Sang, were rejected on September 13, 2012,” the civil society group argues. The group contends that from its mandate, which is primarily governance and anti-corruption issues, AfriCOG does not present any specific expertise in the case. But in her plea to the court, Otieno states: “We will detail the other various instances of non-cooperation, including the failure to freeze the assets of Mr Kenyatta, which may allow the Appeals Chamber to grasp the context in which these actions have taken place.” Efforts to reach Otieno yesterday to respond to Change Associate’s allegations of relying on falsehoods were futile as she did not respond to our numerous calls and text messages.

A civil society organisation that aggressively challenged Uhuru Kenyatta’s presidential victory at the Supreme Court has started another legal duel with the President at The Hague.

The Africa Centre for Open Governance (Africog) has already been allowed to file observations challenging a decision not to sanction Kenya at the Assembly of States Parties in the now-defunct case against President Kenyatta.

A five-judge Bench of the ICC Appeals Chamber ruled that the NGO should make their submissions as a friend of the court, known in legal parlance as amicus curiae, by Friday this week.

“The Africa Centre for Open Governance may file observations on the topics listed in the above- mentioned request of no more than15 pages,” the Chamber, led by ICC President Silvia Fernández de Gurmendi, said.

ICC Prosecutor Fatou Bensouda has appealed a decision by the Trial Chamber declining to refer Kenya to the ASP over alleged failure to disclose President Kenyatta’s financial and phone records.

A successful appeal could resurrect the crimes against humanity charges against the President as Bensouda is threatening to press for new charges if her evidence improves.

“Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she stated as she withdrew the case last year.

In their ruling, the judges said that Africog can file observations explaining the context in which the alleged non-cooperation occurred.

They will also highlight the relevant statutory provisions under Kenyan law relating to cooperation with the ICC.

Bensouda, Attorney General Githu Muigai, victims’ lawyer Fergal Gaynor and Uhuru’s lead counsel Stephen Kay have up to Friday next week to respond to Africogs’s petition.

Africog has had a series of legal battles with Kenyatta and Deputy President William Ruto that climaxed in 2013 when they put up a spirited fight to have Kenyatta’s presidential victory nullified.

In an eloquent presentation made by lawyer Kethi Kilonzo, Africog teamed up with Cord to try and prove that the presidential vote was openly rigged.

Later that year, Africog thwarted Ruto and journalist Joshua arap Sang’s bid to have their trial moved to Kenya or Tanzania.

In the ongoing appeal, Bensouda argues that the Trial Chamber erred in law by failing to automatically refer Kenya to the court’s 122 signatory states known collectively as the ASP – having initially made the requisite factual finding.

However, Attorney General Githu Muigai dismissed the appeal, terming it an abuse of court process.

The AG has insisted that Bensouda was transferring her investigative responsibility to the Kenyan government and is now pushing for punitive action against the country.

NAIROBI, Kenya — On a chilly Saturday 24 years ago, political leaders angered by the dictatorial rule of Kenya’s President Daniel arap Moi led 6,000 protestors to a rally at a dusty sports field north of Nairobi’s city center. Speaker after speaker demanded political reforms, democracy, and transparent government, driving the crowd into a frenzy. Then security forces moved in and pushed people back with batons and tear gas. Riots followed, first across Nairobi and then nationwide. After a four-day crackdown, 20 people were dead and most of the opposition leaders were under arrest.

That day, July 7, 1990, became known as Saba Saba — “seven seven” in Kiswahili. In Kenya, it is still synonymous with violent suppression of popular protest against political despotism. This year, Saba Saba and all of its connotations are on Kenyans’ lips again. Opposition leaders once more called their supporters to a rally this July 7 in central Nairobi, where grievances ranging from soaring costs of living to rising insecurity were vented under the watchful eye of 15,000 armed police summoned to keep the peace. Fears the rally would turn into a riot were so deep that people fled flashpoint towns, diplomatic staff and private sector workers were encouraged to work from home, and shops stayed shuttered.

In a democracy like Kenya there should be room for protests and dissent. But six years after post-election violence here killed 1,200 Kenyans, the country is once again girding itself for violence as dangerous political divisions in what is supposed to be East Africa’s most stable country are widening again. A recent spate of terror attacks is only fueling the political fire. In a country where partisan affiliations are driven by tribe, political conflict pushed by self-serving politicians could result in deadly ethnic conflict. While the July 7 rally passed peacefully, hostility between supporters of rival leaders remains high.

Mistrust between two groups stretches back to the birth of independent Kenya in 1963. On the one side are President Uhuru Kenyatta’s supporters, drawn from his Kikuyu tribe, the country’s largest ethnic group and the most politically and economically powerful. On the other, the Luo, a tribe from the country’s west, are massed behind Raila Odinga, one of the original Saba Saba firebrands and now leader of the opposition Coalition for Reforms and Democracy (CORD). The Luo complain that they and other tribes have been marginalized since the Kikuyu took power in the 1960s. Luo leaders have since played second fiddle to presidents from other tribes, never quite reaching the top spot. The ill-feeling between the Kikuyu and the Luo, with allied tribes, erupted into violencefollowing the 2007 elections.

The worry was that Monday’s Saba Saba rally could have sparked the fire again, that politically-driven scuffles could swiftly morph into deadly intertribal attacks. Church leaders,business groups, foreign envoys, and newspaper columnistscalled for calm.

Kenya can ill afford to stumble into unrest. If the situation really explodes the biggest beneficiary would be al-Shabab, the Somalia-based al Qaeda affiliate.

Kenyatta’s 15-month-old administration faces criticism over its handling of myriad internal and external crises. The most egregious, many Kenyans say, is the inadequate response to a burgeoning threat from terrorism. In September 2013, 71 people died when al-Shabab militantsattacked the Westgate mall. But violence has picked up recently. On May 16, 10 people were killed in blasts at a Nairobi market. Seven people died two weeks before that in explosions on busesin Mombasa and Nairobi. Iin June and the first week of July alone, more than 100 people died in five attacks on three towns along Kenya’s coast. At least 29 died in two assaults against Hindi and Gamba, two towns on Kenya’s northern coastline on July 5.Similar raids killed 69 people over eight days in June in and around Mpeketoni town, in Kenya’s coastal northeast close to the Lamu archipelago. In Mpeketoni, Hindi and Gamba, non-Muslims were singled out and executed. Businesses including hotels, banks, and gas stations were torched. Al-Shabab claimed responsibility for all these attacks, and says they will halt their offensives only when Kenyan troops leave the African Union force fighting Islamists in Somalia.

Kenyatta, however, has insisted the gunmen were not Islamist terrorists, but local political networks opposed to his government.

Many analysts — and average Kenyans — say that intertribal clashes and political violence would be a deadly distraction for a government that should be focused on stopping al Qaeda’s east African proxy. But the political elite in Nairobi may not have their priorities in line with what is best for the country.

“First; that there is simply no genuine political will to respond to the increasing insecurity threats,” wrote Peter Aling’o of the Institute for Security Studies in Nairobi, in a recent op-ed. “And secondly; that insecurity has become a tool for political manipulation by the government, state security agencies and opposition groups.”

This politicking was most obviously on display when Kenyatta went on live television on June 17, two days after the Mpeketoni raids — which al-Shabab had already claimed as their own. The attack, Kenyatta said, was the work of “local political networks,” not the Islamists. Regional police made similar pronouncements after the Hindi and Gamba assaults on July 5.

In the president’s interpretation, the attack on Mpeketoni, a Kikuyu enclave, was aimed at terrorizing his tribesmen to leave the coastal region where the indigenous tribes, allies of the Luo, claim they were given land illegally. Those coastal groups largely side with Odinga’s party. To many Kikuyus, Odinga is hell-bent on igniting an ethnic war so that he can get into power either in some sort of national unity government, or simply through a revolution that overthrows Kenyatta. Mpeketoni was the first salvo of that war, they say. (Odinga has denied this).

The blame game over Mpeketoni brought otherwise latent anger between each side of Kenya’s political-ethnic divide into the open. Following Kenyatta’s television address, commentson Kenyan media websites erupted into bald stereotyping of tribe and ethnicity. Facebook and Twitter feeds took dark turns. Threat and counter-threat flowed. A leaflet circulated in some areas demanding all Luo leave within seven days.

“The potential for violence is very much present,” says Gladwell Otieno, head of the Africa Centre for Open Governance and a former chair of Transparency International Kenya. “The ethnic rivalry and hostility card feeds into Kenyatta’s narrative and keeps his base heated up and supporting him. But it’s a very dangerous game to play. At what point do things spill into violence that probably cannot then be controlled?”

There is little evidence that political militias have been readied for mass violence as they were around the 2007 elections. But sporadic violence could persist over months, spreading security forces thinly when they should be focused on tackling al-Shabab. Ethnic divisions would become even more deeply entrenched. Rumbling domestic political violence, with further Islamist terror attacks, could chill the confidence of foreign investors, who have so far largely ignored rising insecurity. Tourism, which drives 10 percent of Kenya’s economy, is struggling, with visitor numbers down 12 percent following the Westgate attack and hoteliers reporting mass cancellations as terror strikes increased in 2014. A shaky economy and high unemployment are fertile ground for political agitators and radicalizing imams alike. Al-Shabab could find its ranks swelled, and will certainly celebrate the Kenyan government’s insistence that the country’s greatest threat is not global terror, but political enemies within.

Whether violent skirmishes break out or not, Kenya is again starkly divided, at a time when it needs unity to cope with the difficulties it faces. Without that solidarity, the only ones who benefit are al-Shabab and, arguably, Kenya’s political elite. Strange bedfellows indeed.

Christena Dowsett/Getty Images

Kenya‘s most prominent anti-corruption activist has warned that the country is “at a tipping point” as terrorist threats, declining revenues from tourism, and a lack of confidence in the government pile pressure on its leadership.

John Githongo, who exposed a £500m corruption scandal that implicated the former Kenyan president Mwai Kibaki and several senior politicians, said government corruption remained a serious and deepening problem.

Speaking to the Guardian at the UN Forum in London last week, Githongo said: “One feels concerned that we could tip either way, the politicians so far have not shown a competence to be able to handle all these balls in the air at the same time.”

A series of attacks have rocked Kenya in recent months, calling into question the government’s ability to stem terrorist activity. Security measures such as roadblocks and pat-downs are common, but Githongo says people fear the government is not doing enough to protect them.

“Kenyans have never been as insecure as they are right now, generally speaking,” he said. “We’ve never had less confidence in our government’s ability to deal with this insecurity – that is the most serious problem.”

Kenya’s president, Uhuru Kenyatta, has said the tourism sector, a crucial pillar of its economy, was “on its knees“, after western governments issued travel alerts urging foreign visitors to stay away from the country’s famous national parks and beaches for fear of terrorist attacks.

“Nairobi is a slightly tense place now,” Githongo says. “This tension is borne partly out of the violence we had in 2008, and this sense that with all that’s going on with al-Shabaab, with the government not seeming to know what it’s doing – making clueless statements, falling out with its traditional friends, the US and the UK – this gives you this sense that something bad is bound to happen.”

Pressure from Kenya’s traditional western allies to prosecute Kenyatta and his deputy, William Ruto, at the international criminal court over violence in the aftermath of the 2007 presidential elections has led Kenya to tighten diplomatic and economic ties with China.

At the end of a three-day visit to Kenya in May, China’s premier, Li Keqiang, agreed to finance 90% of a $3.8bn railway that will link Mombasa with Nairobi, and eventually connect Burundi, Rwanda, South Sudan and Uganda.

“Ever since we started engaging our Chinese colleagues in business, transparency has crashed, and that is causing considerable concern vis-a-vis corruption and its potential implications with regards to governance problems,” Githongo said.

But the country’s new constitution, a booming tech industry, discoveries of natural resources, a growing middle class, and investment in infrastructure, health and education are reasons to be optimistic about the future, he says.

“The new constitution is a sign that Kenya is moving in the right direction,” Githongo said. “But, at the same time, we’re seeing very important elements, or chunks, of this constitution being undermined very deliberately by the current government.”

Githongo, former head of the Kenya chapter of Transparency International, previously led the government’s anti-corruption taskforce. His struggle to expose political corruption is the subject of a book by British journalist Michela Wrong, which chronicles his dramatic flight from Kenya after he received death threats from people involved in his investigation.

Githongo says courageous Kenyans who speak out against the government, and ridicule its leadership, inspire him. He names the photojournalist Boniface Mwangi and rapper Juliani as young, politically aware people whom he admires.

Official regional integration in east Africa, long promised through multilateral organisations such as the East African Community, has stalled, but is beginning to happen informally, Githongo says.

“That [official] process is now stopping, partly because the integration is happening organically – in terms of business, in terms of free movement of people and goods and ideas,” he said. “At a people level, integration is moving way faster than the government level – governments are running to keep up.”

The quality of governance across Africa is increasing, says Githongo, who sits on the boards of the Africa Centre for Open Governance (Africog) and Freedom House, a press freedom and human rights watchdog.

But slippages in the fight against corruption have occurred in some African countries, he says, naming South Sudan, Central African Republic and the Democratic Republic of the Congo as states that have scaled back anti-corruption efforts.

Multinational corporations operating in the continent often fail to pay taxes, and trade within themselves, Githongo says, limiting revenues received by African governments.

“When one is talking about hitting the issue of tax avoidance and transfer pricing, one will find that the same institutions crop up when looking at terrorism finance, human trafficking, money laundering, drug trafficking,” he said, noting that an investigation into these institutions “could be the beginning of something important”.

Githongo is driven by the influence that corruption has on bigger problems. “I look at highly corrupt, fast-growing countries: Indonesia, Thailand, Kenya – very volatile; all the time [there are] coups, deaths, demonstrations.

“Corruption is ultimately causing poverty. It’s poisoning our politics. It’s increasing the level of violence in our politics. It’s causing Kenya – despite all our growth, the shiny buildings, all the nice cars – to head towards failure.”

Kenya may have bitten more than it can chew as far as some of the amendments it is proposing on the ICC Rome Statute at the ongoing Assembly of State Parties are concerned.

Kenya has not only failed to give the relevant three-month notice to amend the statute, the amendments – to be discussed this afternoon and on Monday afternoon – go to the very heart of the statute.

The dearest amendment to Kenya’s heart- entrenchment of immunity for sitting heads of states- is also the dearest to the statute.

Article 27 which Kenya wants amended provides for irrelevancy of official capacity. It says that the statute “shall apply equally to all persons without any distinction based on official capacity.”

To avoid any doubts, Article 27(1) expressly states that “official capacity as a Head of State or Government, member of government or Parliament, elected representative or a government official shall in no case exempt a person from criminal responsibility.”

For further avoidance of doubt, Article 27(2) adds: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.”

Kenya however wants this Article amended by including Article 27(3) to read: “Notwithstanding paragraph 1 and 2 above, serving heads of states, their deputies and anybody acting or is entitled to act as such may be exempted from prosecution during their current term of office. Such an exemption may be renewed by the court under the same conditions.”

Kenya argues that the Article as it currently stands “goes against the basic tenets of international law pertaining to privileges and immunities of government officials.” But civil society groups supporting ICC think otherwise.

“Immunity for government leaders before the ICC is contrary to the basic principle that no one should be above the law. We should not deny victims and their families justice because their tormentors hold high political positions,” Georges Kapiamba, President of the Congolese Association for Access to Justice said on Monday.

“Human rights abuses by governments and armed groups remain one of the biggest challenges confronting people in Africa,” George Kegoro, the executive director of International Commission of Jurists adds.

He says the ICC serves as a crucial court of last resort. Africog’s Gladwell Otieno said the amendment to exempt government officials contravenes everything the Rome Statute stands for.

“The principle of equality before the law would be violated if some accused are allowed not to attend trial based on status,” says Otieno.

She says the amendment is worsened by the fact that both Uhuru and Ruto were aware of their indictment when they offered themselves for presidency in the March 4 polls.

Besides Article 27, Kenya is also seeking amendments to Article 63, Article 70, Article 112 and even the preamble of the statute.

Article 63 provides that “the accused shall be present during trial.” It also provides for excusal of continuously disruptive accused from attendance in “exceptional circumstances”. Kenya argues that the statute does not define these exceptional circumstances.

It wants the article amended to say that “an accused may be excused from continuous presence in court after the chamber satisfies itself that exceptional circumstances exist, alternative measures have been put in place and considered, including but not limited to changes to the trial schedule or temporary adjournment or attendance through use of communication technology or through representation of counsel.”

Kenya wants the Article to also include other sub articles saying absence shall be considered on a case-by-case basis and that such shall only be granted if the trial chamber satisfies itself that the exceptional circumstances exist.

On Article 70 which talks of “offenses against the administration of justice”, Kenya wants it stretched to include the prosecutor as a possible culprit. Both Uhuru and Ruto’s defence have severally made multiple allegations against the prosecutor.

“This particular Article presumes that such offences save for 70(1)(f) can be committed only against the court. Noting the current situation in the Kenyan cases especially Trial Chamber V (b), this article should be amended to include offences by court officials so that it’s clear that either party to the proceedings can approach the court when such offences are committed.”

On Article 112, Kenya complains that the Office of the Prosecutor has been evading oversight citing Article 42 which guarantees its independence. Kenya wants the statute amended to expressly subject OTP to Independent Oversight Mechanism.

“It is proposed that IOM be operationalised and empowered to carry out inspection, evaluation and investigations of all the organs of the court,” Kenya said in a November 7 proposal send by Deputy permanent representative to the UN, Koki Muli Grignon.

On the preamble of the statute, Kenya wants it amended to reflect complementarity at regional level as well. Currently, it says the “ICC shall be complementary to national jurisdictions.”

Kenya says the amendment is inspired by the African Union resolution, which urged that the cases be handled nationally or regionally.

In addition to these actual amendments to the statute, Kenya is also seeking amendment to Rules of Procedure and Evidence. Contrary to Foreign Affairs Principal Secretary claims that AU/Kenya has not sought option of trying the accused through video-link, Kenya has made a specific proposal on video-link.

On November 4, Kenya’s permanent representative to the UN Macharia Kamau proposed an amendment to Rule 134 to synchronize it to the proposed amendment to Article 63.

The proposed amendment basically provides for option of carrying trial via video-link or through representation of counsel with the chamber’s approval.

Of note however is that Kenya’s proposal covers “entirety of trial”. This is where Kenya has differed with other proposals for the same including the UK which floated its own version of amendment reading: “In accordance to Article 63, paragraph 1, and after hearing the participants and the Registry, a Chamber may allow the accused to be present by means of video technology for part or parts of the trial.”

Two other amendments on Rules are lined up for discussion and adoption. Two of them have emanated from the court and have been subjects of long-running discussions with relevant committees of the court in following a road-map designed for amendments.

These two are amendments to Rule 68 and Rule 100. While the latter may serve to help Uhuru and Ruto if adopted, the former may work against them.

Currently, Rule 100 provides for trial away from the Hague but with approval of ICC presidency (three judges at the apex of the court), relevant chamber and support of two-thirds of all ICC judges.

The process is however complex and involves parties to the case (defence and prosecution) or “majority of judges” writing to the presidency first.

The presidency then consults the views of the relevant chamber before consulting the state which wants to host the trial. Thereafter, the plenary of the ICC judges take a vote. At least two thirds of judges must support the idea.

According to ASP’s Working Group on Lesson’s Learned (WGLL), this rule which is aimed at enabling the defendants – who are not subject to a warrant of arrest – to conduct their public and private life with minimum disruption is illogical and unfair.

Previous attempts to relocate the trial venues have “encountered such complex procedural challenges, linked to the current formulation of rule
100, that the process could not be pursued further. ” Ruto tried it earlier in the year and failed.

The proposal is to amend it to strip the plenary of judges of its powers to initiate or authorize the relocation of trial from the Hague.

The argument is that the plenary cannot take part in determining a matter of a case “that is not managed by and not known to them in an exhaustive and intimate manner.”

The matter will be determined by the relevant chamber judges together with the presidency which represents all other judges. Unlike the present case, the amendment would open door for appeal by either party.

On July 11, Ruto lost a motion to hold the trial in Kenya largely owing to the ‘tyranny of the plenary’. This is despite all the three judges in the Ruto case, who knew the intricacies of the case voting ‘yes’. The matter could also not be reversed even after judge Eboe-Osuji filed a motion to vacate the plenary vote citing gross procedural flaws.

If the amendments were to pass and Ruto re-applied to relocate the trial to Nairobi, he would most likely have his way as all judges in his case supported it in July.

However, amendment to Rule 68 is quite something else. And Kenya is bitterly opposed to the amendment. The amendment will give the prosecution more room to introduce prior-recorded testimony during trial.

Currently, the Rule provides for two instances where prior-recorded testimony can be introduced.

The two are when a witness who gave a previously recorded testimony is not present before the trial chamber but both parties to the case had the opportunity to examine the witness during the recording or if the witness present before the trial chamber, is not opposed to introduction of such recorded testimony and is ready to be examined on it.

The amendment proposed by the court but which Kenya believes was initiated by the prosecution wants to add three additional instances.

These are; where the recorded evidence goes to proof a matter other than the acts and conduct of the accused, where prior-recorded testimony comes from a person who has subsequently died, presumed dead or unable to testify orally and if the prior-recorded testimony comes from a person who has been subjected to interference.

According to ICC’s Working Group on Lessons Learned (WGLL) chaired by court Vice President Judge Sanji Mmasenono Monageng, the amendment is “intended to reduce the length of ICC proceedings and streamline evidence presentation.”

They also say the amendment reflects practice in international criminal tribunals. The group says the proposal received “broad support” from major stakeholders.

“We are totally opposed to this amendment. We believe it is an attempt by the prosecution to rescue their falling case through the back door. We will be pushing for its rejection at the ASP,” Evans Monari, a lawyer said.

The prosecution has severally claimed that several Mungiki leaders who participated in the post-election violence were neutralized prior to the commencement of the cases. It is not clear whether the prosecution had taken statements from them or whether the Waki Commission had.

If these individuals, and others who may not be able to attend the trial, recorded statements, they can be used against the accused at trial.

These two amendments have the best chances of passing through at the ASP because they have been ventilated since March and the necessary consensus and legitimacy has more or less been achieved. This is unlike the other proposed amendments to either the rules or statute which have been floated last minute.

Judge Monageng, who is also ICC’s first vice president has complained about the haste in which the other amendments have been processed. His boss, Judge Sang reiterated the same when he addressed the ASP on Wednesday pleading with it not to pass amendments in haste.

The proposal to amend the Rule 134 to include trial via video link was communicated to the court on November 1. The court was given five days (until November 6) to provide views on the legal aspects of the amendment.

The letter to the court was signed by Ambassador Hakan Emsgard (Sweden), the current chair of ASP’s Study Group on Governance. It was addressed to Judge Monageng in his capacity as chair of ICC’s Working Group on Lessons Learned (WGLL).

In his reply of November 4, Monageng wrote: “The proposal has been communicated to the court on an urgent basis. Therefore, the court has not been able to engage in the regular consultation process for proposed amendments.”

He said other amendments (on rule 68 and 100) have undergone “rigorous and thorough review” using a road-map agreed at the last ASP in November last year.

The road-map entails proposals being sent to the Study Group on Governance and to the Advisory Committee on Legal Texts (ACLT). It would also involve Monageng’s-chaired WGLL and another body called Working Group on Amendments (WGA).

Ultimately, the proposal to amend the rules must be in place two months before the commencement of the ASP meeting. Monageng said the late submission of the proposals meant they missed the input of judges of WGLL, ACTL, other judges of the court, representatives of the prosecutor, registry and other counsels who sit at ACTL.

“In light of the above, I am only in position to convey a preliminary analysis of the proposal,” the judge said in the letter.

In his remarks, Monageng cautioned those pushing for amendments to ensure that they align them to the statute. He reminded them of Article 51(5) of the statute which says in case of conflict between the statute and the rules, the former will prevail.

He reminded them that Article 63 of the statute says “the accused shall be present during the trial”.

“If the amendment proposal were not consistent with the statute, the court would be compelled not to apply the rule in accordance with Article 51(5) of the statute,” he warned.

Monageng appeared to suggest that it would be in vain to amend the rules without amending the statute. Although Kenya has proposed the amendments to the statute, their chances of them being settled in this ASP are very low.

In the last few days at the ASP, many state parties including Norway kept harping on the importance of amendments being processed through the WGA. Many states are also alive to the fact that most the amendments, although designed to address the Kenyan conundrum, has long term effect on the court and other cases.

Many stand to be surprised if Kenya manages to chew what it has already bitten with these multiple amendments, proposed at short notice and with far-reaching implication to international law.
– See more at: http://www.the-star.co.ke/news/article-144720/kenyas-bid-amend-rome-statute-likely-fail#sthash.fuNnKO7L.dpuf

Kenya should stop piling pressure on African states to back amendments to the Rome Statute, civil rights activists gathered at The Hague have said.

The activists said Kenya’s plea on the proposal for amendments to allow for the immunity of sitting presidents from prosecution was in vain.

Some 122 State parties to the Rome Statute meeting in The Hague are expected to deliberate on the proposals.

Ms Gladwell Otieno of the Africa Centre for Open Governance (Africog) said that Kenya was aware of the difficulties in amending articles 134 and 27 of the Statute.

“Majority of African states are against the proposal by Kenya and this means that it will fail,” Ms Otieno said.

Mr George Kegoro, the executive director International Criminal Justice, said that a significant number of African states did not support the possibility of amending the articles.

He said Namibia was the only state that came clearly to support the amendment that no sitting head of state should be prosecuted while in office.

Mr Kegoro, however, added that the discussion was inaccurate because the indictments are against persons who were accused before they became heads of state.

SUPPORT TRIALS VIA VIDEO LINK

Majority of states at the Assembly supported UK’s move to have the court accept Kenya’s trials via video link from Nairobi.

(Read: ICC: Kenya on the spot over trial via video link)

Foreign Affairs Cabinet Secretary Ms Amina Mohammed applauded the move by majority of African and international leaders to support amendments to have trials on video link.

“ICT is the future of our nation and we should not be denied the right to use modern means during the trials,” Ms Mohammed said.

She added that the proceedings on amendments the previous day were historic.

“By supporting our head of state, we are not running away from justice but we are cooperating with the court to find the best way to the entire problem of the trials,” she said.

However, the prosecutor for the International Criminal Tribunal for the former Yugoslavia Mr Serge Brammerts said the move on Rome Statute amendments would not be effective.

He added that his belief in international justice was less certain and the ICC should consider a simpler approach to crimes against humanities.

“It would be better for the ICC to take the approach of creating local tribunals so as to tackle the local cases in the best way,” Mr Brammerts said.

He added that a number of problems and limitations such as global impacts of international indictments may be a blow to respective countries whose heads of state are on trial.

In an article on Sunday the 29th of September 2013 in the Daily Nation entitled “Attack will draw West, Kenya closer” former US Assistant Secretary of State Jendayi Frazer spoke at length about why the cases at the ICC should be dropped in order to aid the fight against terror in the country.

Her basic premise was that it is not feasible to have the Head of State and his Deputy engaged in the ICC process so deeply while maintain an effective war on terror – she uses the week off from trial that H.E. William Ruto requested as proof of this.

She further argues that the ICC cases constitute a “distraction” from addressing security concerns and that as a result the United States should help Kenya extricate itself from the process for the betterment of the war on terror.

Kenyan foreign policy has been ad hoc and arbitrary at best, now defined by the ICC process and the use of the African Union and general Pan – African sentiment to rally support against the ICC in order to garner sympathy as a form of ad hominine defence. The politicization of the debate has transformed a legal issue into a political one.

The fundamental assumption or premise of this argument is flawed. Jendayi Frazer works under the assumption that the mere presence of the President and Deputy will embolden the operations of the Security sector.

This is a gross oversimplification of the challenges facing the war on terror and more importantly completely ignores the role of bad governance in creating the conditions that allowed the Westgate tragedy to take place.

Our borders are well known to be porous easily facilitating the flow of small arms and individuals with possible links to Al-Shabab to enter our country.

It is telling that some of the most insecure areas in our country are those nearest our borders which also happen to be those with a high concentration of weapons.

The proliferation of these small arms is aided by corrupt border officials and has links to local wealthy businessmen and politicians.

The illegal trade of commodities through the same conduits also benefits the same people. Therefore we cannot simply stop the flow of these arms through increased security measures but by a major shift in governance and the eradication of corruption that feeds these porous borders.

It must become increasingly difficult to find a corrupt official who will look the other way when you bring in small arms, and these dealers must not have links with the local elites.

Our security sector is in dire need of reform, a fact demonstrated by the lack of professionalism shown by the security forces during the Westgate tragedy and the list of glaring questions that have arisen over their conduct during the siege.

We have been promised an inquiry into the goings on at the shopping mall, but this is rhetoric we have heard before often used as a delaying tactic to protect perpetrators from justice.

This includes crimes carried out by the security sector including various human rights abuses and extra judicial killings including the Wagalla massacre the PEV of 2008.

As a testament to the impunity and protection elites have created for themselves the NIS focuses on civil society actors who bring up these issues rather than shedding light on what really happened during these events, in which they were complicit.

Income inequality and the presence of a large number of uneducated, unemployed youth promotes easy radicalization as illustrated by the PEV, the strength of the MRC and the general insecurity in the country not to mention providing a recruiting platform for Al-Shabab.

The country has become criminalized with political, business and criminal elites working in tandem for their own ends. Hence our institutions are being eaten from within, we are naturally insecure and the ICC process has not caused this.

On the contrary the ICC process represents a threat to this status quo, an external force that can impose accountability for the worst most heinous crimes committed on our soil since independence.

We cannot have justice and reconciliation locally from our current system of governance. Half of the country is of the opinion that the courts were compromised and that the last General elections were stolen, and the recent illegal suspension of Chief Registrar with Gladyce Shoellei have not helped matters.

The security sector is implicated in the very crimes which it is supposed to investigate and has consistently failed to do around political violence – for example the clashes around the 1992 and 1997 polls. Parliament has rejected the establishment of a local tribunal three times during the last government the two most powerful men in the country stand accused of complicity in the PEV violence.

Add this to the nature of governance in our country and its track record with impunity, the plight of IDP’s in Kenya and it is difficult to see how she envisages this government dealing with the perpetrators of the PEV.

Certainly low level perpetrators can be tried and some form of justice achieved but this misses the wider context in which the Westgate tragedy was allowed to occur.

The impact of the events of last month are tragic but they must be seen in the same light as the Wagalla massacre and PEV that has accompanied the advent of the multi-party system. These events are all symptomatic of poor governance. Abdicating ourselves from the ICC process simply continues the cycle of impunity and means that the nation will have missed a great opportunity to strike a blow against this culture.

Fixing corruption, impunity and creating good governance ostensibly fixes the conditions that allowed Al- Shabab to launch the Westgate attack and the similar conditions necessary for political violence to take place.

The recommendations of the TJRC that seeks to address historical injustices needs implementation for justice to be achieved. There is no reason to believe that the nation can suddenly begin implementing the recommendations of various commissions such as the aforementioned TJRC report the Ndungu report and others.

Jendayi Frazer calls for enhanced US support for the security sector, but without good governance and the track record of misappropriated funds in the past it is unlikely this will change things.

American support to help Kenya rid itself of the ‘distraction’ of the ICC cases will not result in greater security, indeed it will be a victory for impunity as it is unlikely that the local system can prosecute these crimes. Governance remains the central problem and this is inexorably linked to impunity.

If we fix governance we will no longer have porous borders or corrupt officials manning these borders and an Intelligence service far better equipped to counter threats from Al-Shabab. We must harness the togetherness shown in the wake of the attack exemplified by the Twitter tag WEAREONE to fight impunity and call for better governance, to hold our government accountable for what it does and only then will we effectively address the malaise that allowed armed gunmen to storm the shopping mall.

The reconciliation efforts which Jendayi Frazer suggests can only be effective once justice for politically instigated violence and sweeping reforms to address the structural causes of bad governance have yielded fruit.

By James Gondi

The writer is a Programme Advisor at the Africa Centre for Open Governance
– See more at: http://www.the-star.co.ke/news/article-139972/why-westgate-about-governance-cot-security-or-icc#sthash.ojt3DZcn.dpuf

Summary

Full results of all 6 elections not yet released, prompting suspicions of foul play.
This casts doubt on president’s authority, the Supreme Court’s judgement and the behaviour of election monitoring missions who gave the elections a fairly clean bill of health.
Only 56% of Kenyans believed the vote to be free and fair – Infotrak.
It appears that 1 million more votes were cast in presidential election, than in each of the others, giving the IEBC a headache in trying to reconcile them.
Issue needs to be resolved urgently or the consequences will be serious.

The failure of the electoral commission to release the full results of all six elections is prompting more suspicion of foul play

Although Kenya’s Supreme Court and international observers formally accept the legitimacy of the presidential election, government officials and activists are raising fresh doubts about the number of valid votes cast in the polls on 4 March. For the sceptics, the most glaring flaw is the failure of the Independent and Electoral Boundaries Commission to release the full set of results for all six elections contested on that day. Critics say that the results do not add up and that the IEBC is desperate to reconcile or massage them before making them public.

Unless these basic issues can be resolved, they will undermine President Uhuru Kenyatta’s political authority and challenge the Supreme Court’s endorsement of the result within three weeks of its announcement. In the longer term, such doubts could prompt a re-evaluation of foreign election monitoring missions in Africa. Some on the European Union mission, for example, had serious doubts about the integrity of the process, but it quickly endorsed Kenyatta’s election. By that stage, the EU had contributed more than 50 million euros (US$66 mn.) to the cost of the elections, reckoned to total over $400 mn. One diplomat in Nairobi joked that it was a case of ‘responsibility without power’, meaning that the EU would be blamed for a messy result due to its financial involvement but had no power to change anything.

The IEBC found that a million more votes were cast in the presidential election than in any other, Africa Confidential has learned, although all were held on the same day. Opposition and civil society activists have raised questions about such discrepancies for several months.

An unnamed electoral commissioner quoted in the Nairobi daily The Star appears to confirm their suspicions: ‘We are having sleepless nights reconciling the presidential results and those of the other positions. Over a million votes must be reconciled with the others and if the requirement is not changed, then it will cast the IEBC in a negative light.’

Kenyatta’s supporters reject the concerns, arguing that it is natural that voters were more worried about selecting the national president than candidates for other positions. Few neutrals see this as credible. In the past, dramatically higher turnouts in presidential elections than in others on the same day have been taken as a sign of ballot-box stuffing.

It seems far-fetched that over a million Kenyans would queue for several hours to vote and then ignore all of the ballots apart from the presidential one, especially since there was great excitement about the contests for new, powerful positions such as senator and governor. None of the many election observers we asked said they had seen significant numbers of voters putting a ballot paper in the presidential box but not the others.

A smoking gun
There are pressing political reasons to resolve this discrepancy. The losing parties – particularly supporters of Kenyatta’s main rival candidate, Raila Odinga – would say that this was the ‘smoking gun’ that proved the election was rigged. That would further reinforce the sense of marginalisation among the Luo and Luhya peoples. Civil society activists, such as Maina Kiai and Gladwell Otieno who lodged a petition against the results, would step up efforts to prove the elections were fraudulent (AC Vol 50 No 7, A reform deadline for the rivals & Vol 54 No 6, A very British coup). The public is wavering. A recent opinion poll by Infotrak found that only 56% of Kenyans believed the election was free and fair. That could fall much further if the IEBC fails to resolve the arithmetical and voting discrepancies.

The flaws may not be all on one side. Jared Okello, a petitioner at the High Court in Kisumu and a candidate for the Forum for Democracy-Kenya (Ford-Kenya), claimed that Odinga’s CORD benefited from the votes of dead and bedridden people. One of Okello’s witnesses, John Omollo, said the Presiding Officer at Kobura Primary School polling station campaigned for the local member of parliament, Fred Outa. Odinga and his party won over 90% of the vote in Kisumu in the presidential and parliamentary polls. Their critics say their political dominance allows them to twist the vote in the way that Kenyatta’s supporters can in their stronghold of Central Province.

With allegations of vote-rigging on both sides, the IEBC’s credibility is on the line. If large-scale discrepancies are discovered, its Chairman, Issack Hassan, would face heavy pressure to resign; domestic and international activists would call on the government to disband the Commission and investigate seriously the flaws in vote-counting and tallying.

The impact would not stop there. Organisations that validated the result would also come under fresh scrutiny. The Supreme Court surprised many Kenyans when it unanimously rejected petitions against the results, despite evidence of irregularities. If the Court failed to spot 1,000,000 more votes being cast in the presidential election, its verdict – and its motives – would once again be under the spotlight. International donors and election observers are also nervous. A massive discrepancy in the results would prompt questions about why they gave the elections a clean bill of health without seeing the full results.

Failures all round
Many of the processes that Western governments have supported have failed to guarantee credible polls. Almost all the new technology introduced failed to work. If it turns out that the basic counting and tallying process was also flawed, activists and politicians in Britain, Canada, Germany, Sweden and the United States will want to know what happened to their money. If governments review electoral support missions, the role of the International Foundation for Electoral Systems will come under scrutiny. IFES is a US-based organisation that donors often fund to supply technical assistance to electoral commissions. It provided ‘a range of technical assistance’ to the IEBC from 2011 onwards. Despite several unanswered questions about the elections, the Foundation invited Hassan to speak in Washington on 12 June.

Although the meeting was billed as an opportunity to learn lessons, IFES is vulnerable to charges that it is painting the elections as more credible than they were, perhaps to justify its own role. The publicity for the meeting declared that the elections were ‘widely regarded as credible’ and ‘free and fair’.

The absence of a confirmed set of results and the willingness of the international community to carry on regardless send a message to political leaders and electoral commissioners: if you wait for long enough to air your dirty laundry, there is a good chance that when you do, critical outsiders will no longer be watching (AC Vol 54 No 10, Diplomatic diversions, and Vol 54 No 12, Bringing it all back home).

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Kenya’s Truth, Justice and Reconciliation Commission (TJRC) presented its report to the president of Kenya on May 21. It catalogues a lamentable history of serious human rights violations of Kenya’s people, from patterns of abuse during British colonial rule to those of each government since independence.

The TJRC was established as a response to the post-election violence of 2007-08, when political and ethnic strife caused widespread human rights violations, horrendous suffering by thousands, and deep international concern. With the support of the international community, both the Kenyan government and civil society sought to put in place measures of justice and reconciliation, and among them, an instrument to “address the past in order to prepare for the future”. In the TJRC Act, the legislators expressed eloquently their hope “to give the people of Kenya a fresh start, where justice is accorded to the victims”.

The report charts the execrable record of the police and armed forces as the principal instruments of serial and egregious violations; it establishes the role of presidents from Jomo Kenyatta onwards in leading governments that directed or were accomplices in those violations; it highlights classes of victims and marginalised groups who suffered the brunt of those abuses and the perennial causes of conflict in land and ethnic tensions. It makes a number of serious recommendations about access to justice, reform of institutions, investigations and prosecutions, reparations and exclusion from public office of a number of people. In brief, it looks like a report that could, under certain circumstances, offer the chance for serious reflection and a new beginning for Kenya.

“The government of Kenya has a golden opportunity to make of virtue of this unseemly and grievous situation”

But there is a serious problem. There are credible allegations of political interference from the president’s office and subsequent alterations made to the report without the consent of a number of the commissioners. There are additional problems, but this is by far the most grave. If true, these acts represent outrageous and shocking conduct.

Out of almost 2,000 pages of text, it appears that five paragraphs have been the subject of alterations. They focus on issues concerning land tenure – in particular, allegations about the conduct of former President Jomo Kenyatta, the father of current Kenyan President Uhuru Kenyatta. The original, unedited versions have been widely circulated in the last few days. The alterations have, therefore, proved pointless as the cat is well and truly out of the bag.

The problem lies both in the alleged interference of the president’s office and the national commissioners’ decision to succumb to it. Not only would such conduct be unlawful on both parts, but those involved would have also grievously damaged the prospects of serious consideration of the report, and fundamentally broken faith with the Kenyan people, whom they had sworn a solemn oath to serve. The TJRC should have been the shining light that led the way in restoring trust and confidence in office holders, institutions and government. Instead its report is mired in pointless controversy.

It would, however, be a fundamental error to suggest that these very serious problems deny the vast majority of the report any value. Rather, the question is: Who benefits if this report is not seriously analysed and if its recommendations are ignored? Last on the list of people who benefit are the Kenyan people.

The situation is grave, but it is not without remedy. The original report with unaltered text should have been submitted to the President on May 3. This is the report the TJRC should publish immediately, and have tabled in parliament within three weeks, according to the TJRC’s establishing law [PDF]. The government of Kenya has a golden opportunity to make of virtue of this unseemly and grievous situation.

Mr Kenyatta is presented in the first months of his presidency with a genuinely defining moment: Does he stand for strong institutions, free from interference, where government is a service to the nation, not a licence for abuse? Or does he stand for business as usual, the tragic business of the abuse of power that is rather well documented in the report? We will know the answer within days. He has the power to restore not only the integrity of the report, but indeed the hope of change in the hearts of all Kenyans.

By publishing and tabling the report of May 3, Mr Kenyatta has nothing to lose and a great deal to win, not least the admiration of his people who long for a state with credible institutions that protect their most basic rights.

Paul Seils is Vice President of the International Centre for Transitional Justice.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

GIKUNDI GITARI GIA GITHIRIKARI KIRIA KIRETWO AFRICOG, RIU KIRENDA THIRIKARI ITACUKAGIRIE IKINYA IRUMU MAABITHA ARIA MAREKURUHANIA NA CIEKO CIA NGUKUMIO NA UHUTHIRI MUURU WA WABICI. MURUGAMIRIRI MUNENE WA KIAMA GIKI GLADWELL OTIENO, OIGITE RIRI WATHANI URATWARWO MATURA INI, HARI BATA GUTIGIRIRA UTONGA WA BURURI NDURAHUTHIRWO UURU. OHO OTIENO OIGITE GATIBA NITARIIRIE CARARUKU MAKINYA MARIA ANDU ARIA MAUNGUMANIA MABATIE KUOERWO.
IHINDA INI OO RIU KIAMA KIU NIKIENDEKITHITIE UTHUTHURIA MUITHIRANU WAMBAGE GUTABANIO MBERE YA ABITHA OO WOTHE KUHINGURIRWO THITANGO CIEGEMAINE NA UNGUMANIA KANA UHUTHIRI MUURU WA WABICI.

Otieno Namwaya, Investigative journalist involved in the development of AfriCOG report “Kenya’s Drought Cash Cow” discusses his role in the development of the report on the Arid Lands resource management project.

KENYA: The Government has promised a transparent regime committed to efficiency in service delivery.

Information, Communication and Technology Cabinet Secretary Fred Matiang’i on Thursday stressed the need for the Government and Civil Society to work together to promote open governance.

Speaking at the conference held at Serena Beach Hotel in Mombasa yesterday, Dr Matiang’i reiterated the Government’s commitment to open governance.

“The Government should publish a self-assessment report approximately after every three months so as to enhance transparency and accountability. A hallmark of an advanced society is how they execute or manage their differences in opinion,” Matiang’i said.

African-led process

The forum was attended by representatives of African governments, Civil Society, donor organisations, academia and Open Government Partnership member states officials.

The forum brought together players in the government and non-governmental sectors to explore the operational and technological issues affecting open governance in Africa while seeking to chart ways of improving service delivery.

South Africa Deputy Minister of Public Service and Administration Ayanda Dlodlo said open governance in the region should be an African-led process.

He said commitment to open governance was already being seen in how African leaders hold each other to account on various issues.

Executive Director at African Centre for Open Governance ( Africog) and founding member of Open Government Partnership (OGP) Gladwell Otieno, lauded efforts by African governments to embrace transparency in running of public affairs.

She encouraged governments that have not joined OGP to do so to make the dream of open governance in Africa a reality.

“Participating countries should share their experiences with other governments and civil society groups so as to tackle the Open Government Challenge,” Otieno said.

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