On September 1, after Kenya’s Supreme Court became the first in Africa to nullify a flawed presidential election, Kenyans danced in the streets and some revelers pledged to convert to Seventh Day Adventism, the religion of Kenya’s somber chief justice, David Maraga. Then the mood darkened. President Uhuru Kenyatta, whose dubious victory had been overturned, told supporters that the judges were “crooks” and threatened to “fix” them. Chief Justice Maraga revealed that he and his bench colleagues had received numerous threats; when nearly $5 million mysteriously appeared in his bank account, he instructed the bank to return it at once.
A rerun was scheduled for October 26. but the opposition leader Raila Odinga pulled out two weeks ago, claiming that nothing had been done to remedy the problems that marred the first election. Then, just last week, the election commission’s chairman confirmed that his institution was presently incapable of guaranteeing a credible poll. The previous day, one of his own officials, made the same claim after fleeing to the US in fear of her life. Throughout October, street demonstrations against the electoral commission have taken place across the country, and security forces have killed dozens of people. Meanwhile, the United States and the rest of the international community appear to be looking the other way as this nation, an important US trading and defense partner, dissolves into undemocratic chaos.
After Odinga withdrew, the State Department issued a brief statement claiming that the US remains committed to supporting a “free, fair, and credible election.” But some Kenyans, including the official who fled, wonder why they have done so little to make this happen.
The original August 2017 election was overseen by hundreds of observers from the US-funded Carter Center, as well as from the National Democratic Institute (which supports numerous Kenyan election-monitoring NGOs). These groups downplayed Odinga’s concerns about rigging, and even accused him of stoking ethnic tensions, when he’d actually urged his supporters to remain calm. When Kenyatta was declared the winner on August 11, with 54 percent of the vote, the opposition called the process “a charade.” Angry street protests followed, and Odinga filed a petition with the Supreme Court claiming that the electronic voting system had been hacked and the results manipulated. The American observer groups claimed that a parallel vote survey they supported shows Kenyatta would have won anyway, but they have not made its methodology public, despite numerous requests from journalists and civil society groups.
Odinga’s concerns stem from the fact that the electoral commission plans to use the same companies that had printed the ballot papers and supplied the electronic results transmission system that spectacularly failed on election day. After he threatened to drop out of the October rerun, Kenya’s international donors, led by the US, threatened sanctions for impeding the new poll. Withdrawing from an election is a form of nonviolent protest allowed under Kenya’s constitution—and America’s, for that matter—and many Kenyans wondered why the donors were rattling their sabers at Odinga instead of pressuring Kenyatta’s government to mend the flawed electoral system. The donors did threaten to sanction Kenyatta if he rushed through new laws that would weaken legal oversight of elections, but they did not demand that he address the existing problems with the electoral commission and the election services companies that had led to the rigging in the first place.
The donors claim they fear violence. More than a thousand people were killed after security forces and ethnic gangs unleashed terror following Kenya’s 2007 elections. On that occasion, the unrest was sparked by a double injustice: the blatant rigging of the election, followed by the Bush administration’s rush to congratulate Mwai Kibaki, the incumbent president whose henchmen had done the rigging. By pressuring the opposition to participate in what shows every sign of being another sham on October 26, the donors could once again be abetting injustice, which will inflame, not pacify, the Kenyan population.
The problems raised by Odinga seem serious. Ten days before the election, the electoral commission’s IT chief, Chris Msando, was brutally murdered. This, argue officials from Odinga’s party, the National Super Alliance (NASA), opened the way for all sorts of mischief. Technology experts hired by NASA report that shortly before the August election, thousands of the kits used to transmit results from polling stations disappeared from the electoral commission. On election day, these kits nonetheless transmitted results, raising obvious flags about their validity. All the results were supposed to be sent directly to the electoral commission using a virtual private network, or VPN, but according to NASA’s investigation, the Kenyan telecommunications company Safaricom diverted some of them to a server in Europe under the control of the French multinational firm OT-Morpho, which had supplied the faulty results transmission system. According to NASA’s experts, the election commission’s electronic records show thousands of unauthorized or malicious actions by unidentified users.
The companies in question reject the allegations. OT-Morpho says it is initiating a lawsuit against NASA for defamation. Safaricom also denies the accusations, but NASA has announced its intention to sue six employees of the telecom company for cybercrimes.
On Monday, the US ambassador and other members of the diplomatic community claimed, contrary to Odinga’s assertions, that the electoral commission had “made changes in personnel and procedures that address many of the concerns raised and that strengthen its technical ability to conduct an election.” When I asked the US embassy what those changes were, I was referred to the electoral commission’s Twitter feed. Rather than going through six weeks of tweets, I requested a list of the changes. That it was not forthcoming suggests that the diplomats have done little to ensure that promised changes have been made, or even determine what they are. Meanwhile, one of the main technology companies implicated, OT-Morpho, is to receive payment of about $23 million—three times more than the electoral commission had originally estimated. Washington was mute on this as well.
Why isn’t the US doing more to pressure Kenyatta to address these Odinga’s concerns? Geopolitics could be one reason. Kenyatta’s militaristic approach to the crises in the neighboring countries of Somalia and South Sudan aligns closely with Western security policy. Odinga, however, is more inclined toward a negotiated resolution of these conflicts. If it favors Kenyatta’s strategy, the US may not be as neutral in Kenya’s electoral contest as it claims to be.
Some Kenyan commentators, including the economist and NASA policy adviser David Ndii, have also suggested that the US could have a financial interest in a Kenyatta victory. Kenya’s economy has long been largely controlled by a Tammany Hall-like political machine linked to the Kenyatta family. The country is developing rapidly, breaking ground on numerous roads, railway, oil pipeline and other infrastructure projects, with Chinese, American, and European firms lining up to secure contracts. Given the problems of governance and accountability, corruption is an obvious risk.
On the last day of Obama’s presidency in January, the US greenlighted a $418 million arms deal with Kenya. The supplier, a Lockheed Martin subsidiary named L3, would provide a fleet of armed crop-duster aircraft for patrols in Somalia. But L3 does not make viable versions of these aircraft, but IOMAX, a company based in North Carolina, does—and it would have charged Kenya some $130 million less than L3 for the same planes. In March, the North Carolina congressman Ted Budd cried foul—and the deal is now tied up in a congressional oversight committee.
Then, three days before the August election, the Kenyan government quietly announced that the US construction giant Bechtel would build a $3 billion cross-country highway. This deal should have been subject to competitive bidding, but that did not happen. Kenyan taxpayers will pay Bechtel $1 billion upfront.
If some of these schemes do not pass what Kenya’s famous anticorruption campaigner John Githongo calls “the smell test,” then a bad odor has long surrounded Kenyatta’s relationship with his Western partners. In 2010, when Kenyatta was deputy prime minister, the International Criminal Court announced that it was investigating him for recruiting one of the militias responsible for mass killings following the 2007 election. The case faced numerous obstacles—according to the ICC, key witnesses were intimidated, bribed, or killed—but the chief prosecutor, Luis Moreno Ocampo, also fumbled his questioning of Kenyatta at the charges confirmation hearing in 2011. The prosecution still went ahead, but in the meantime Kenyatta won the 2013 election—though this, too, was marred by rigging allegations (the polling station results have never been made public).
By then, Moreno Ocampo’s ICC term had ended and he’d left the court, but that year he wrote to Kofi Annan, the former UN general secretary who’d mediated a power-sharing agreement between Odinga and Kibaki in 2008, to lobby for “an honorable exit” for Kenyatta from the very ICC prosecution Moreno Ocampo himself had initiated. The case against Kenyatta was already collapsing when Kenyatta joined other African leaders at the Obama White House for a summit to promote American trade on the continent in August 2014. Four months later, all charges were dropped.
Odinga promotes himself as a reformer, and there may be powerful American and European interests ranged against him for that reason. Back in 2007, a USAID-funded exit poll showing that, contrary to the official results, Odinga had almost certainly beaten the then incumbent, Kibaki, was never released. To dispel any suspicion that it is quietly intervening in Kenyan politics in a similar, if subtle, way now, the US must do all it can to ensure that Kenyans get the “free, fair, and credible election” Washington says it wants.