Category Archives: Justice

Becoming THE Solution

This weekend I spoke with someone I had not spoken with for over twenty years. We met when I lived in Southern California in the 80s and had been Facebook friends since 2010 but had yet to talk. Juliana (not her real name) is also from Kenya. Her mother is from Nyeri and her father is from Kiambu – someone definitely crossed the Chania River! We caught up on what has happened in our lives since we last talked almost two decades ago. She waxed maternally about her two beautiful children – Julianna (with two “Ns” instead of one – there is a big difference I was told – forcefully) and Julian (Juliana sans the “A” at the end). I listened and concurred with her description of her offsprings knowing that I expected her to do the same when I started babbling about my equally beautiful son. As presciently as I had imagined, Juliana and I both agreed that fortunately, Malo, my adorable ten-year old had inherited his mom’s looks! I shamelessly plugged my upcoming book Wuodha: My journey from Kenya to these United States. I also told her about my blog, thetwoninetyonetracker.com once again with little shame! It was at this point that our conversation took a sharp turn and focused on the just-concluded presidential elections and the postings on my blog.

Juliana and I blamed everyone and everything for the dysfunctional nature of present-day Kenyan politics. She decried the gloating of “her” people from Central Province (over the election results), “their domination” of Kenya’s socio-political and economic life since independence and their perceived sense of entitlement. I lamented over the “herd” and “victim” mentality of “my” people from Nyanza; wondering about the wisdom of their near-permanent status as the mainstay of Kenya’s political “opposition”. We both blamed the politicians from Kenyatta Pere to Kenyatta Fils, Odinga Pere and Odinga Fils, not to mention the sycophants around them, for the country’s halting socio-political and economic development since independence; economic development whose trajectory, especially in the late 70s, was on par with that of the Four Tigers – South Korea, Taiwan, Singapore and Hong Kong – or so I argued in my senior thesis in 1989 in a paper well-recieved by my advisor Professor Chalmers Johnson, a noted political economist and expert on Asia. We did not forget the role M1, as Daniel Moi was called back in the days, played in exacerbating the tribalism, corruption and human rights abuses set in motion by Kenyatta Pere. We mused over the third crossing of the Chania River by one Emilio Mwai Kibaki. A development I described as Kenya’s Camelot Era that started with so much promise only to fizzle in an orgy of post-election violence in 2007: His “re-election” birthed the post-election violence that forever tarnished Kenya’s image as an “oasis of peace” surrounded by the Idi Amins and Siad Barres of this world; the same PEV that Messer’s Kenyatta and Ruto are answering for at The Hague. Our pride was unmistakable as we marveled at how the half-Kenyan Luo Barack Obama rose to become the first black (and bi-racial) president in America no less – a country whose past is similarly marred with deadly violence between its citizens – blacks and whites. We then laughed uncontrollably as we wondered how he would fare were he to vie for Kenya’s presidency. All told, it was a heartwarming conversation. It felt great to reconnect with a long-lost and dear friend.

The one thing Juliana and I started to discuss albeit not as vociferously as we did when assigning blame for what ails Kenya was OUR role in contributing to the dysfunction. The two of us spent more time casting aspersions at all save us for Kenya’s problems.

I have to admit that I have offered more criticism than solutions to the problems facing the country of my birth; an admission and realization that brought me to the quote below from a YouTube clip titled “Bull’s Eye: Life after the elections.”

wallace Gathungu 2 days ago

It is my prayer UK/Ruto reach out to Luo Nyanza no matter how many times they may be rebuffed. UNITE KENYA.

I did not support Uhuru Kenyatta’s candidacy because I believe that he is the poster child for all that has been at the heart of Kenya’s socio-political problems: Corruption, nepotism, entitlement, privilege, patronage, impunity etc. and because he is facing charges at the International Criminal Court for crimes against fellow Kenyans. Maybe it is just my quirkiness or maybe I have been away from Kenya for too long but there is something morally wrong when a presidential candidate and his deputy are both facing charges as heinous as the charges facing Mr. Kenyatta and Mr. Ruto.

Having said that, I recognize and respect the fact that Mr. Kenyatta was duly elected by the majority of Kenyans, Supreme Court-confirmed and finally inaugurated as President of Kenya. I will give him the honeymoon period he deserves even as I continue my critique of his presidency. However, I also want the criminal proceedings at The Hague to continue to their conclusion, if for no other reason than to provide some semblance of justice for the thousands of Kenyans brutally murdered and hundreds of thousands more displaced from their homes because of actions allegedly fomented by Mr. Kenyatta and his VP.

Though I am not familiar with the series “Bull’s Eye,” I think of it as political satire addressing current events in Kenya. It is, I believe, the equivalent of two shows that air stateside on the TV channel Comedy Central featuring Jon Stewart and Steve Colbert. The comedic respite of the YouTube clip aside, the comment from Mr. Gathungu was timely and extremely instructive. I would, however, replace the words “Luo Nyanza” with “their opponents” thus the comment would read: It is my prayer that UK/Ruto reaches out to their opponents no matter how many times they may rebuff their efforts (to unite Kenya).

It is my sincere hope that President Uhuru Kenyatta takes Mr. Gathungu’s advice to heart. It is also my hope that as Kenyans, we take Mr. Gathungu’s words to heart and become the change we want in Kenya to wit: Anyone interested in adopting an IDP?

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Filed under 2013 Presidential Elections, Democracy, Governance - Kenya, Justice, Kenya, Life, Politics, Tribalism, Tribe

Clerical Errors and Kitu Kidogo

As disappointed as I am that the Supreme Court of Kenya (SCOK) has validated the results of the 2013 Elections despite what I would describe as compelling evidence of “massive systemic failure” of the election process, I respect its decision and commit to move on. And as noted in a previous post “The Loyal Opposition and The Fruit,” I fully expected SCOK to uphold Jubilee’s victory review of the polling data notwithstanding. I also noted that when it came to pass, the losing CORD candidates, Raila Odinga in particular, should play the role of the respectful and loyal opposition while mentoring upcoming socio-political leaders. His experience as a reformer is invaluable.

I respect SCOK’s decision because according to the March 30 issue of the Daily Nation in an article titled Supreme Court upholds Uhuru’s election as president, the decision was unanimous. It is encouraging that the five (5) justices AND their chief, Chief Justice Mutunga ALL agreed that Messr’s Uhuru Kenyatta and William Ruto were validly elected as president and vice-president respectively. I am, however, left wondering whether the phenomenon groupthink1 was at work here.

1 – A psychological phenomenon that occurs within a group of people, in which the desire for harmony or conformity in the group results in an incorrect or deviant decision-making outcome.

Like someone told me the other day: Opinions are like (fill in your favorite part of the human anatomy), everyone has one. To wit; it is my opinion that SCOK’s decision overlooked the data as presented by Ms. Kilonzo and Mr. Oraro including the admission by Jubilee’s own lawyer Mr. Ngatia that even though there were admitted “clerical errors” tallying the various results from the sampled polling centers, “no mischief” was intended “at all!” I am not a statistician but I have worked and interacted with some of the best statisticians and mathematicians over the past 20+ years in the medical device manufacturing industry here in Silicon Valley. I will say that if I conducted a test that yielded data similar to the data set presented before SCOK by Ms. Kilonzo and Mr. Oraro, peer review would fail my test and compel me to repeat said test – period! The one qualifier I would add to my contention is this: The threshold for reliability of and confidence in election results based on a small sampling of selected polling stations may be different from that reliability and confidence requirements for testing/qualifying processes used to manufacture medical devices!

If ever there was a metaphor for the Kenyan culture of “Kitu Kidogo,” I would say that the process and outcome of the petition filed by CORD is apt! We have Mr. Fred Ngatia, the plaintiff’s lawyer conceding that there were indeed small “clerical errors” whose intentions were not “mischievous at all” – tallying errors nonetheless. We then have the same Mr. Ngatia convincing the SCOK that these “clerical errors” did not invalidate the outcome of the election of his clients and crimes-against-humanity suspects Messer’s Kenyatta and Ruto to the highest offices in the country! I would say that consistent and widespread “clerical errors” tallying and tabulating votes that may potentially determine the outcome of a presidential election deserve more than a flippant characterization and review, especially by the highest court in the land! The frivolity with which Mr. Ngatia portrayed the tallying errors is consistent with the way most Kenyan’s think about bribery, corruption and cutting corners in general; indeed a national Rorschach Test whose outcome is very disturbing:

It is just “kitu kidogo – something small” to expedite issuance of a driver’s license, conveniently overlook some code violations when conducting a building or road inspection or “miss” seeing the bald front tires or faulty brakes on a public service vehicle during a traffic stop! No “mischief” may have been intended in the foregoing scenarios but the end results of these “vitu vidogo” is there for all to see: Drivers who can barely drive let alone understand/obey traffic rules, construction – roads and buildings – that crumble and fall apart shortly after being commissioned leaving death, destruction and misery in their wake and carnage on the road due to accidents caused by a combination of ill-gotten driver’s licenses, drunk driving, vehicles that are not road-worthy and supposed highways in various stages of dis-repair. In short, the culture of so-called and allegedly un-mischievous/benign “clerical errors, typos, computer glitches, vitu vidogo” has mutated into a cancer that is slowly but surely killing the national spirit and cohesion! But hey…”nothing mischievous was intended.” It was just something small.

The foregoing aside, the Supreme Court has rendered its verdict: Uhuru Muigai Kenyatta and William Samoei Ruto are scheduled to be sworn in as President and Vice-President of Kenya on April 9, 2013. They will then have about two months before they board the plane to The Hague for their date with Ms. Fatu Bensouda on charges of crimes against the very humanity that elected them into office.

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Filed under 2013 Presidential Elections, Corruption, Democracy, Elections, Justice, Kenya, Politics

The REAL Tyranny Of Numbers – Cont’d

At least we now have Jubilee’s lawyer Mr. Fred Ngatia conceding that “there may have been clerical errors here and there…” even as he quickly follows that concession with a Ronald Reaganesque-like addendum that “….no mischief can be attributed to these (clerical errors) at all.” And since he, Mr. Ngatia, on behalf of his clients who are both facing criminal charges at The Hague, say that “no mischief can be attributed to the ‘clerical error’,” all Kenyans should believe him! These individuals, Mr. Kenyatta and Mr. Ruto that is, are after all paragons of virtue and integrity!
To paraphrase a popular saying here in the US: a clerical error here, a typing error there, a computer glitch here, a rounding error there and soon we have an 833,000 voting advantage!

The “clerical errors” with no mischievous intent include the following:

1. Addition to tallied vote numbers
2. Subtraction from tallied vote numbers
3. Inability to verify numbers of votes cast even though “official” results show one candidate receiving five-figure vote total
4. Missing aggregate results from Form 36 (used to tally final vote counts).
5. Multiple Forms 36 from same polling station
6. Different aggregate results from different Forms 36 from the same polling station
7. Incomplete Forms 36.

To use another popular expression stateside, especially amongst our distant cousins, African-Americans: Ni**a please!!

Add to the laundry list of “clerical errors” Nani Mungai’s (IEBC’s lawyer) “document dump” explanation that the IEBC “provide thousands of green books for scrutiny to address allegations of having more votes than registered votes” and we have a classic but obvious cover-up attempt by a bureaucracy! For those not familiar with a “document dump,” Wikipedia explains it thus:

Document Dump: The act of responding to an adversary’s request for information by presenting the adversary with a large quantity of data that is transferred in a manner that indicates unfriendliness, hostility, or a legal conflict between the transmitter and the receiver of the information. The shipment of dumped documents is unsorted, or contains a large quantity of information that is extraneous to the issue under inquiry, or is presented in an untimely manner, or some combination of these three characteristics. The phrase is often used by lawyers (and politicians)…It is often seen as part of the characteristic behavior of an entity that is engaging in an ongoing pattern of activities intended to cover up unethical or criminal conduct.

The REAL Tyranny of Numbers – Cont’d1

• Number of constituencies identified as having anomalies: 22
• % of constituencies identified as having anomalies: 7.6% (22/291)
• Number of anomalous constituencies that voted for Kenyatta: 11
• Number of anomalous constituencies that voted for Odinga: 11
• Number of votes received from anomalous constituencies: 594,985 vs. 339,096 (Kenyatta v. Odinga)
• % of votes from anomalous constituencies: 9.6% vs. 6.1% ((Kenyatta v. Odinga)

1 – Source: Daily Nation, March 28, 2013, Recount reveals vote irregularities.

A back-of-a-napkin analysis of the foregoing numbers point to a systemic failure of the election process during the 2013 Elections. In analyzing 7.6% of the constituencies, we have anomalies affecting 6-10% of the votes cast! Expand this to all 291 constituencies and we have an (election) outcome that is an epic failure and is absolutely unreliable; one that confirms CORD’s basic contention of a massive breakdown of Kenya’s electioneering process/system during the elections necessitating negation or questioning of the final results.

If the data provided by the re-count and summarized above does not provide the Supreme Court with enough evidence to prove CORD’s contention, then I am not sure how they are interpreting the results of the recount nor do I don’t know what more they need to address CORD’s petition. I make this statement irrespective of who benefits from the breakdown.

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The REAL Tyranny of Numbers!

  1. Number of votes separating Uhuru and Raila: 832,887 or 6,173,433 vs. 5,340,5463
  2. IEBC budget for providing the Biometric Voter Registration (BVR) kits: kshs. 3.82billion1
  3. Number of bids to supply the Biometric Voter Registration (BVR) kits: 41
  4. Highest bid: kshs. 8.31billion (OnTrack, Israel)1
  5. Lowest bid: kshs. 3.76billion (4G ID Solutions, India)1
  6. Winning bid: kshs. 4.63billion (Face Technology, South Africa – 2nd highest bid)1
  7. Difference between reported IEBC budget for BVR Kits and winning bid: ~kshs. 810Million over budget (4.63b – 3.82b)
  8. Poll data source/location analyzed/presented to Supreme Court by Ms. Kethi Kilonzo: 32
  9. Total number of polling stations in the country: 33,4003
  10. % of polling stations whose no. of registered voters differ from the no. of votes cast/reported by the IEBC: 0.0001%2
  11. The increase in Mr. Kenyatta’s vote count in Nyeri due to discrepancy between votes – county vs. IEBC: 0.31% or 317,881 vs. 318,8802
  12. The decrease in Mr. Odinga’s vote count in Nyeri due to discrepancy between votes – county vs. IEBC: 7.8% or 6,075 vs. 5,6382
  13. % difference between registered voters and votes tabulated as received in Charity Primary School Kieni : 31,000% or 1 registered voter vs. 310 votes received2
  14. % difference between registered voters and final votes tallied/reported in Machakos Town: 2,546% or 125 registered voters vs. 3,182 votes tallied/reported2
  15. Lowest discrepancy noted: 0.31% in Nyeri2
  16. Highest discrepancy noted: 31,000% in Kieni, Nyeri2
  17. % gap between Uhuru and Raila: 6.76% or 50.07% vs. 43.31%3
  18. The total number of constituencies in the country – 291 (including Diaspora)3

1 – Source: Africa’s Public Procurement & Entrepreneurship Research Initiative (APPERI), Kenya: IEBC Tender Team Quits over Biometric Deal, July 16, 2012.

2 – Source: Presentation by Kethi Kilonzo before Supreme Court, Daily Nation, March 27, 2012, The Poll was a fraud on voters, argues lawyer.

3 – Source: IEBC Website (link from previous post http://www.kenyaelections.com/wp-content/uploads/SUMMARY-OF-2013-PRESIDENTIAL-RESULTS-DECLARED-ON-9_3_2013.pdf)

 

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Filed under 2013 Presidential Elections, Democracy, Elections, Justice, Kenya, Life, Politics, Uncategorized

Partial Justice is NOT Impartial Justice!

I find it interesting, indeed ironic that the Supreme Court of Kenya (SCOK) has ruled against a forensic audit of the Information Technology system used by the Independent Electoral and Boundaries Commission (IEBC) in the March 4 presidential elections claiming that to do so would “jeopardize the petition.”

Justice Mohammed Ibrahim, speaking for the SCOK argued that the legal team representing the Coalition for Reform & Democracy (CORD) was “time barred” in filing the motion asking the court to compel the IEBC to allow an audit of the information technology (IT) system; adding rather curiously that the commission “cannot produce a complete IT infrastructure…before the hearings of the petitions begin on Wednesday.”

It is this uniquely Kenyan tendency of short-circuiting institutional processes, be it procurement tenders or as is the case here, comprehensive judicial review of evidence at the very root of an election petition that sours most Kenyans on these very institutions that are meant to represent their interests, impartially and comprehensively. That the Supreme Court is not willing to allow an audit, complete or partial, of the very system at the heart of the current dispute is strange to say the least and begs several questions including the following:

• While providing the “complete IT infrastructure” within a compressed time is indeed laborious, isn’t the quest for justice THE over-arching issue?
• Is the laborious nature of the request (for the complete IT infrastructure) the only reason the request was denied? Why didn’t the court allow an audit of randomly selected infrastructure components, especially those containing suspect data i.e. from constituencies that were under suspicion?
• Isn’t there the risk of missing evidence that may bolster CORD’s case or validate IEBC’s ruling?
• Doesn’t this ruling, at a minimum, give the impression of an incomplete, partial or selective hearing of the evidence thus de-legitimizing the petition process and its end result – determining who won the presidential elections of 2013?

Like all Kenyans, I want the petition resolved expeditiously and peacefully. I then want the country to move forward, regardless of the outcome but to paraphrase a saying, “partial justice is not impartial justice.” The Supreme Court is doing the country a disservice by refusing to review ALL the evidence.

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