    [House Hearing, 113 Congress]
    [From the U.S. Government Publishing Office]

                            KENYA'S 2013 ELECTIONS:

                         AN EFFECTIVE ASSISTANCE MODEL?

    =======================================================================

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,

                            GLOBAL HUMAN RIGHTS, AND

                          INTERNATIONAL ORGANIZATIONS

                                     OF THE

                          COMMITTEE ON FOREIGN AFFAIRS

                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 APRIL 16, 2013

                                   __________

                               Serial No. 113-73

                                   __________

            Printed for the use of the Committee on Foreign Affairs

    Available via the World Wide Web: http://www.foreignaffairs.house.gov/
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    20402-0001

                          COMMITTEE ON FOREIGN AFFAIRS

                     EDWARD R. ROYCE, California, Chairman
    CHRISTOPHER H. SMITH, New Jersey     ELIOT L. ENGEL, New York
    ILEANA ROS-LEHTINEN, Florida         ENI F.H. FALEOMAVAEGA, American
    DANA ROHRABACHER, California             Samoa
    STEVE CHABOT, Ohio                   BRAD SHERMAN, California
    JOE WILSON, South Carolina           GREGORY W. MEEKS, New York
    MICHAEL T. McCAUL, Texas             ALBIO SIRES, New Jersey
    TED POE, Texas                       GERALD E. CONNOLLY, Virginia
    MATT SALMON, Arizona                 THEODORE E. DEUTCH, Florida
    TOM MARINO, Pennsylvania             BRIAN HIGGINS, New York
    JEFF DUNCAN, South Carolina          KAREN BASS, California
    ADAM KINZINGER, Illinois             WILLIAM KEATING, Massachusetts
    MO BROOKS, Alabama                   DAVID CICILLINE, Rhode Island
    TOM COTTON, Arkansas                 ALAN GRAYSON, Florida
    PAUL COOK, California                JUAN VARGAS, California
    GEORGE HOLDING, North Carolina       BRADLEY S. SCHNEIDER, Illinois
    RANDY K. WEBER SR., Texas            JOSEPH P. KENNEDY III,
    SCOTT PERRY, Pennsylvania                Massachusetts
    STEVE STOCKMAN, Texas                AMI BERA, California
    RON DeSANTIS, Florida                ALAN S. LOWENTHAL, California
    TREY RADEL, Florida                  GRACE MENG, New York
    DOUG COLLINS, Georgia                LOIS FRANKEL, Florida
    MARK MEADOWS, North Carolina         TULSI GABBARD, Hawaii
    TED S. YOHO, Florida                 JOAQUIN CASTRO, Texas
    LUKE MESSER, Indiana

         Amy Porter, Chief of Staff      Thomas Sheehy, Staff Director

                   Jason Steinbaum, Democratic Staff Director
                                     ------

        Subcommittee on Africa, Global Health, Global Human Rights, and
                          International Organizations

                   CHRISTOPHER H. SMITH, New Jersey, Chairman
    TOM MARINO, Pennsylvania             KAREN BASS, California
    RANDY K. WEBER SR., Texas            DAVID CICILLINE, Rhode Island
    STEVE STOCKMAN, Texas                AMI BERA, California
    MARK MEADOWS, North Carolina

                                C O N T E N T S

                                  ----------
                                                                       Page

                                   WITNESSES

    Mr. Paul Fagan, regional director for Africa, International
      Republican Institute...........................................     5
    Keith Jennings, Ph.D., senior associate and regional director for
      Southern and East Africa, National Democratic Institute........    14
    Mr. Bill Sweeney, president and chief executive officer,
      International Foundation for Electoral Systems.................    24

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Mr. Paul Fagan: Prepared statement...............................     8
    Keith Jennings, Ph.D.: Prepared statement........................    17
    Mr. Bill Sweeney: Prepared statement.............................    26

                                    APPENDIX

    Hearing notice...................................................    52
    Hearing minutes..................................................    53
    Keith Jennings, Ph.D.: Material submitted for the record.........    54

             KENYA'S 2013 ELECTIONS: AN EFFECTIVE ASSISTANCE MODEL?

                                  ----------

                            TUESDAY, APRIL 16, 2013

                           House of Representatives,

                     Subcommittee on Africa, Global Health,

             Global Human Rights, and International Organizations,

                         Committee on Foreign Affairs,

                                Washington, DC.

        The subcommittee met, pursuant to notice, at 2 o'clock
    p.m., in room 2172 Rayburn House Office Building, Hon.
    Christopher H. Smith (chairman of the subcommittee) presiding.
        Mr. Smith. The committee will come to order and good
    afternoon. Let me apologize first to our very distinguished
    witnesses for the lateness. We did have a series of votes.
    That's the only reason why we are late, but again, it infringes
    on your time, so thank you for your patience and to everyone
    who is here today.
        Good afternoon. Today's hearing will examine U.S. actions
    to support the March 2013 elections in Kenya, a critically
    important African ally. The United States has devoted more than
    $35 million since 2010 alone to prepare for and manage this
    year's election process. After the massive violence following
    the closely contested December 2007 election, many precautions
    were taken to prevent a similar occurrence in 2013. And
    Election Day and post-election violence has been greatly
    reduced. However, an effort to use new technology did not work
    as well as hoped. There were questions about the effectiveness
    of this election which had promised to be a technological
    advancement. Given future important African elections, this
    hearing will look at what a responsible U.S. position toward
    African elections should look like in an era of constrained
    development aid budgets.
        The tragic Election Day deaths of 19 people, although
    attributed mostly to Islamist separatist elements and not to
    specifically election-related causes, cannot be ignored and the
    perpetrators must be held to account. It is unacceptable that
    in the violence that followed the 2007 elections an estimated
    1,200 Kenyans, and there are different estimates, some say
    1,000, some say more, were killed and approximately 600,000
    were displaced according to the media reports. Yet, no one thus
    far has been held accountable.
        Kenya, this year, conducted its first election under the
    2010 Constitution. In addition to voting for a president and
    members of the National Assembly, Kenya selected members of a
    new Senate, as well as governors and local assembly
    representatives in the 47 newly-created counties, each with a
    designated women's representative.
        More technology was brought into polling places to better
    ensure accuracy of voting and vote tabulation. Unfortunately,
    reported malfunctions of some equipment in some polling
    stations at the national level where a server breakdown for a
    while stoked fears of vote rigging. If the court process had
    not been handled as well as it was, we might be looking at
    another wave of post-election violence.
        Uhuru Kenyatta was elected President, as we know, with
    6,173,433 votes to 5,340,546 votes for Mr. Odinga. And this was
    certified by the Kenyan Supreme Court which coincidentally
    today issued a further elaboration and made very clear that
    although there were some anomalies, this election was indeed
    properly conducted. Nevertheless, the violence was a
    possibility until Mr. Odinga gave a magnanimous concession
    speech following the first court ruling.
        The amount of U.S. support for the Kenyan election was
    extraordinary. American and Kenyan civil society organizations
    were enabled, in order to conduct civic education, including
    ratio and television messages, and programs aimed at youth to
    encourage participation in the election process, as well as to
    discourage violence. Youth organizations were created
    nationwide to give young people an enduring voice in their
    country's political system. Several innovative approaches were
    created including a comic book called Shujazz with young
    characters involved in commenting on the Kenyan political
    process.
        The three organizations presenting testimony today all
    played major and very important roles in the creative
    preparations for the 2013 Kenyan election. The International
    Republican Institute printed nearly 1.2 million sample ballots
    and 400,000 election posters for the IEBC and also distributed
    some 800,000 Shujazz posters. The National Democratic Institute
    conducted an important poll on voter attitudes heading into the
    election, covering such issues as whether the country was
    headed in the right direction, whether their lives will improve
    in the next 5 years, whether the election posed a security
    threat to them in their community, and whether they felt others
    were being encouraged to do harm to their ethnic group because
    of the elections. Of course, these organizations did so much
    more which will be elaborated on in their testimony.
        The International Foundation for Electoral Systems advised
    Kenya's Electoral Commission on the process to conduct an
    election where there were 1,882 different configurations of the
    ballot, depending on the local races being run--an enormous
    undertaking. The cell phones necessary for reporting of vote
    totals from polling stations were so late in being procured,
    however, that IFES went ahead and purchased 1,200 to send into
    the field in time for Election Day.
        Despite the extraordinary efforts by NGOs in preparing for
    the Kenyan election, we must be selective in what lessons we
    take from this experience. We will not be able to devote such
    resources to what will be several important elections yet to be
    held in 2013 in other countries.
        The U.S. Government has pressed both the Governments of
    Mali and Madagascar to hold elections at the earliest possible
    date in order to normalize relations after coups replaced
    elected leaders. Zimbabwe, which recently held a constitutional
    referendum, is scheduled to hold a Presidential and legislative
    elections that many in that country hope will break the long
    cycle of repression of political opposition. There was a report
    in today's newspapers that the Zimbabwe leaders are looking for
    funds because they are short in terms of election monitoring-
    type funds. So they're making an appeal as well. The next
    election in Ethiopia will replace the late Prime Minister Meles
    and also will determine whether the political opposition will
    have more space to operate than in previous elections. I'll
    never forget Greg Simpkins and I traveled right after one of
    the marred elections. Even though the opposition made
    significant gains, people were literally gunned down in the
    streets of Addis, and we were there to raise those issues with
    Prime Minister Meles, but hopefully the next election will be
    really, truly free and fair.
        These elections are important to U.S. foreign policy as was
    the election in Kenya. So how do we ensure that they are
    successful and truly represent the will of the voters if we
    can't devote the resources as we did in Kenya? What role do we
    have to play going forward? This is the question we put to
    today's witnesses whose organizations have broad experience
    with African elections and have a unique viewpoint that we hope
    will allow Congress and the administration to agree on funding
    for a policy that is fiscally sound while being politically
    effective. This hearing comes at a critical time since Congress
    is currently considering our budget for foreign affairs, so I'd
    like to yield to my friend and colleague, Ms. Bass, for any
    opening comments.
        Ms. Bass. Thank you, once again, Mr. Chairman, for holding
    today's hearing on Kenya's recent election and what we can
    learn from this important period in the country's history, both
    politically as well as socially. Kenya is an important
    strategic partner to the United States and the most recent
    election provides an opportunity to not only better understand
    elections in this East African nation, but important lessons
    for the continent as a whole.
        I want to also acknowledge and thank today's witnesses.
    Each of you in your organizations participated in the recent
    elections and you should be congratulated for your work, not
    only in Kenya, but across Africa to ensure free and fair
    elections are observed everywhere.
        I want to make clear from the outset of this hearing that
    this committee turns its attention to the Kenyan elections
    because of its importance to the region and the continent.
    Kenya is said to be the economic engine of East Africa and
    enjoys a thriving private sector that drives growth and
    development. And as we address Kenya's election, we do so
    knowing very well that our own country faces many challenges to
    ensure that all citizens exercise their right to vote without
    fear of disenfranchisement and intimidation. The right to vote
    is at the heart of our democracy and is cherished among those
    we hold dear.
        Kenya deserves praise for permitting the courts, rather
    than violence, to determine its bright future. In the aftermath
    of 2007, Kenya endured a dark period that reminded us all of
    what's at stake. While there were pockets of violence, this by
    far was the exception rather than the rule. I believe the
    response following the March 4th election and court ruling made
    clear that Kenyans chose a future that adheres to peace and the
    rule of law.
        In reviewing Mr. Sweeney's remarks for today's hearing, I
    found his framework for evaluation of the recent election to be
    both informative and useful, and if you don't mind I would like
    to paraphrase from your statement in phrasing how we might
    consider the recent elections. You wrote, ``Did this most
    recent election reflect the will of the people? Were the
    investments made in the democratic process well spent? And did
    they allow important advances to take hold?''
        In particular, I'd like to know what your thoughts are. Mr.
    Chairman gave several examples of some of the work of the NGOs
    in terms of the posters, the comic books, and all of that and I
    would like to know your opinions as to whether or not, from all
    three of you, as to whether or not you thought that really made
    a big impact.
        I would like to add an additional question to this
    thoughtful and pragmatic list. Do the steps taken and
    investments made provide a model for elections in other
    countries throughout Africa? As we've seen in the last year,
    African nations with some significant exceptions have embraced
    democratic processes, the rule of law, and peaceful
    transitions. Whether through elections or constitutional means,
    countries like Senegal, Ghana, Sierra Leone, and Malawi
    illustrate a strong and I believe lasting shift toward
    democracy. I would add that we learn much from our success as
    we do from those things that did not go according to plan.
        As we will hear from today's witnesses, our focus should
    cover the broad diversity of success and the obvious
    challenges, the activities that worked well, in addition to
    those that failed to accomplished its stated objective. As the
    Congressional Research Service notes, the Kenyan Constitution
    brought major changes to the government, established new checks
    and balances and a more deliberate separation of powers and
    evolving considerable powers to a new county level of
    government. And important changes were made to the
    administration of the elections, notably, the introduction of
    new technologies designed to enhance the transparency of the
    process and credibility of the results. Some of these reforms
    worked well and while others proved to be inefficient or
    ineffective and maybe you could comment specifically where you
    thought what was insufficient and what wasn't effective. Delays
    in voter registration and the problems with election equipment
    resulted in poorly coordinated voter programs. A lack of voter
    education, voter buying and intimidation concerned domestic and
    foreign observers alike. But these are the challenges of a
    relatively new democracy and a country, I believe, that is
    committed to improving and strengthening its institutions.
        Kenya's new President must take heed of the many challenges
    that were experienced during this most recent election and move
    swiftly to show to all Kenyans that the new government is
    willing to build a culture of unity that is inclusive of the
    country's 50 ethnic groups. The challenge may be great, but the
    opportunity is even greater.
        I firmly believe that Kenya's future has never been
    brighter and with the election now over, Kenyans proved that
    the rule of law prevailed over the stinging violence of '07.
    Thank you, and I look forward to hearing from today's witnesses
    and I yield to the chairman.
        Mr. Smith. Thank you, Ms. Bass. I'd like to now introduce
    our distinguished witnesses.
        Beginning with Mr. Paul Fagan, who began his career at the
    International Republican Institute in 1995. He currently serves
    as the Regional Director for Africa where his duties include
    oversight of the programs in Kenya. He served as IRI's first
    East Africa Resident Regional Director based in Kenya and
    oversaw IRI's programs and Kenya's historic 2002 elections and
    also implemented IRI's first series of political party programs
    in Somaliland. He later served as Acting Deputy Director for
    Africa and then served on election observation missions in
    Afghanistan, Azerbaijan, Georgia, Kenya, Liberia, Nigeria,
    Somaliland, and the Ukraine.
        We'll then hear from Dr. Keith Jennings, who is a Senior
    Associate and Regional Director for Southern and East Africa
    for NDI. Over the past 15 years, he has represented NDI in 30
    countries working on a range of governance, civil society,
    political party, and election programs. He has managed several
    of NDI's largest programs, having served as the Institute's
    Country Director for Liberia, Mozambique, Nigeria, South
    African, and Zambia, among others. He is author of numerous
    popular and scholarly articles on a range of human rights and
    democratic development subjects. He has also been a frequent
    media commentator on foreign affairs.
        And then we will hear from Mr. Bill Sweeney who serves as
    the President and CEO of the International Foundation for
    Electoral Systems or IFES. Prior to these positions, he also
    served on the board of directors and was chairman of that
    organization. He has a life-long background in democracy
    promotion and public policy with considerable experience in
    both the public and private sectors. He was deputy chairman of
    the Democratic National Committee and executive director of the
    Democratic Congressional Campaign Committee. He has also been
    an official election observer in the Philippines, Russia,
    Jamaica, and Nicaragua.
        Mr. Fagan, if you could begin, and welcome to all three of
    you.

      STATEMENT OF MR. PAUL FAGAN, REGIONAL DIRECTOR FOR AFRICA,
                   INTERNATIONAL REPUBLICAN INSTITUTE

        Mr. Fagan. Chairman Smith, Ranking Member Bass, and members
    of the subcommittee, thank you for the opportunity to testify
    today along with my colleagues from NDI and IFES with whom we
    work closely with around the world. Since its independence 50
    years ago, Kenya has been a strategic ally of the United
    States. IRI has been active in Kenya since 1992 and has worked
    to strengthen democratic institutions ever since. The recent
    March elections signaled many changes for the nation.
        Mr. Chairman, I believe that it is important to talk about
    the challenges Kenya has faced leading up to these elections,
    examine the democratization process the country is undergoing
    and then discuss ways in which the United States can continue
    to foster a strong relationship with its strongest ally in East
    Africa. Furthermore, the recently concluded general elections
    and the comprehensive approach of United States assistance
    should be examined as a possible model for future electoral
    assistance in Kenya and other African countries.
        The flawed 2007 Kenyan elections and the senseless violence
    that followed signaled to the world that democratization is an
    ongoing process that can be derailed if it is not supported.
    After the international community stepped in to help broker
    peace in Kenya, it was clear that more was needed to preserve
    the progress made over the years. The result of the efforts
    occurred on March 4, 2013 when Kenyans overwhelmingly went to
    the polls. The number of voters was not only large, but the
    most ever, with more than 86 percent of registered voters
    participating in the election.
        Five years on, and Kenyans have emerged from a dark chapter
    in their nation's history. While Kenyans today are largely
    optimistic about the future of their country, this optimism and
    the reforms of the past 5 years faced a crucial test on March
    4. In the lead up to these elections, there were signs of
    progress as well as concern. A particular emphasis should be
    focused on the Independent Electoral and Boundaries Commission
    or the IEBC, the judiciary, the media, civil society and
    political parties. All of these institutions deserve credit for
    the role they play to ensure a peaceful process, but many
    Kenyans still have concerns about them.
        The institution that still remains at the center of
    discussion is the IEBC, which organized a relatively good
    election. However, there were moments that could have derailed
    its efforts such as the delayed voter registration process, the
    failure of the electronic voter identification machines on
    voting day and many in the voting centers, and the flawed
    electronic submissions results process.
        Kenyans had expected the Presidential results within 48
    hours, but due to the flawed electronic results system, results
    were not shared until March 9, 5 days after the conclusion of
    the election.
        The political parties need to continue to be reformed with
    a focus on party finance laws, inclusion of marginalized groups
    such as women and youth, and being run more transparently.
    Women, in particular, were supposed to be big winners in these
    elections, but they were not and the parties could have played
    a much more positive role in getting women elected.
        Generally, the media contributed to a peaceful election by
    broadcasting accurate and balanced stories. News outlets
    reminded Kenyans to keep the peace and many articles were
    written about the need to avoid political violence. And civic
    and nongovernmental organizations played a significant and a
    central role in Kenya. In the lead up to elections, civic
    organizations were invaluable to the electoral process and it
    is important to maintain their ability to participate in the
    future.
        Lastly, Kenya's judiciary was key to the success of these
    elections. It was front and center throughout the process.
    Reforms to the judiciary had gone and laid the groundwork for
    the type of competence witnessed during the Supreme Court
    hearing on Raila Odinga's petition. The court proceedings were
    made live on television allowing millions of Kenyans to tune
    in, watch the proceedings, and then decide for themselves how
    they feel about the process. These elections demonstrated that
    Kenyans can and will turn to their courts for justice.
        It cannot be ignored that each of the sectors mentioned
    above, the IEBC, the political parties, the media, civil
    society, and the judiciary all benefitted tremendously from the
    international community. Kenyans and Kenyan institutions, of
    course, deserve the credit, but the donor community's role was
    significant. In particular, it was clear that the United
    States' electoral assistance, led by the United States Agency
    for International Development or USAID, was important when it
    came to team work and building synergies at all levels among
    implementers in Kenya. Kenya benefitted from this holistic
    approach and as such, no stone lay unturned in the efforts to
    support Kenyans in having a peaceful and successful election.
        IRI, in particular, benefitted from USAID support, but we
    have to thank the National Endowment for Democracy for its
    continued support for IRI's programs there as well and its
    continued support for democracy in Kenya and around the world.
        Overall, IRI remains optimistic about the progress made
    throughout the elections process. We recognize that more work
    needs to be done. However, there are obvious issues to
    reconcile regarding the future of the United States relations
    with Kenya. President Uhuru Kenyatta and Vice President William
    Ruto have been indicted by the ICC for claims that they incited
    violence immediately following the 2007 elections. It remains
    unclear how our Government will interact with Kenya moving
    forward. It's a difficult situation.
        Mr. Chairman, Kenya has the ability to lead the way in
    Africa for key reforms that embolden marginalized groups and
    give all citizens the ability to freely and openly participate
    in their government. If this works, Kenya will be a success
    story in Africa and beyond. IRI is committed to continuing its
    efforts to promote democratic governance throughout Kenya by
    empowering local governments and providing them with the
    support they need to be successful. We believe that, in turn,
    the devolution process will be stronger and provide greater
    opportunities for all Kenyans. Thank you, Mr. Chairman.
        [The prepared statement of Mr. Fagan follows:]

                                  ----------

        Mr. Smith. Thank you so very much.
        Dr. Jennings.

       STATEMENT OF KEITH JENNINGS, PH.D., SENIOR ASSOCIATE AND
       REGIONAL DIRECTOR FOR SOUTHERN AND EAST AFRICA, NATIONAL
                          DEMOCRATIC INSTITUTE

        Mr. Jennings. Thank you, Mr. Chairman, members of the
    subcommittee. NDI is very happy to have this opportunity to
    comment on the March 4th elections in Kenya.
        NDI has worked in Kenya since the mid-1990s and for the
    last 5 years has concentrated on helping to facilitate
    peaceful, credible processes around the 2010 Constitutional
    Referendum and on peaceful and credible elections in 2013, as
    well as continued progress beyond them. Mr. Chairman,
        NDI's electoral programming in Kenya addresses six areas.
        The Institute's work to promote dialogue among the
    political parties, the Registrar of Political Parties, and the
    Independent Elections and Boundaries Commission, through the
    Political Parties Liaison Committees--nationally and at the
    county level in all 47 counties--created a sustainable
    foundation for political dialogue at the county level going
    forward, as well as the national stocktaking on the election
    processes.
        By facilitating Kenya's first multi-party youth work
    through the Inter-Party Youth Forum, hundreds of emerging
    leaders forged relationships that served as a brake on violence
    across the country in a manner that can continue to contribute
    positively over the years ahead.
        NDI's support for increased women's political participation
    and representation included training more than 700 women and
    supporting 96 women candidates to share their platforms through
    radio prior to party nominations. This led to more women being
    nominated for positions in party primaries and promoted more
    women as political leaders at the community level.
        NDI's engagement with civil society organizations working
    to ensure the participation of persons with disabilities
    improved advocacy and awareness of marginalized groups in the
    March elections and also a stronger focus among the
    organizations themselves to continue working for their rights
    within the political system.
        NDI also provided technical assistance to 11 faith-based
    and civil society organizations that forged the ELOG, the
    Election Observation Group, which conducted long-term
    observation and independent verification of the Constitutional
    Referendum and the 2013 Presidential election through highly
    accurate Parallel Vote Tabulations. ELOG's PVTs confirmed that
    the official results were within the range of statistical
    projections, and ELOG also identified areas of action for
    improving the process going forward.
        As you said, Mr. Chairman, NDI also conducted survey
    research on a regular basis that informed a range of political
    actors and the organization also conducted an early pre-
    election delegation that was headed by the former Botswana
    President, His Excellency Kitimele Masire that laid out a
    number of gaps in the process that allowed the election
    commission to address those.
        Mr. Chairman, NDI's activities are supported by a wide
    variety of international funders including the U.S. Agency for
    International Development, the State Department's Bureau of
    Democracy, Human Rights, and Labor, the Norwegian Ministry of
    Foreign Affairs, the Kingdom of the Netherlands' Ministry of
    Foreign Affairs, and the United Nations Development Program.
        The financial assistance that NDI receives, especially from
    USAID, occurred ahead of the elections allowing sufficient time
    for the Institute to plan and implement a range of long-term
    activities and also to respond to last-minute contingencies. We
    believe the funders understood what was at stake in the
    elections in Kenya and responded accordingly.
        Mr. Chairman, an accurate and complete assessment of any
    election must take into account all aspects of the process and
    no election can be viewed in isolation from the political
    context in which it takes place. It should also be noted, no
    electoral framework is perfect, and that all electoral and
    political processes experience challenges. The March 4
    elections in Kenya were the most complex in the country's
    history. Six elections took place on the same day with a
    completely new legal framework for both political parties and
    the election management bodies. As you mentioned, we should
    also remember that more than 1,000 people had perished in the
    last election and 600,000 or more displaced.
        Mr. Chairman, I would like to emphasize that NDI did not
    conduct a comprehensive international election observation
    mission for Kenya's election and that ultimately it is the
    Kenyan people who must determine the meaning of the March 4
    polls. However, it is the Institute's view based on its
    intensive work that the Kenyan Presidential elections were
    credible although the process had many flaws. Unanimous ruling
    by the Kenyan Supreme Court affirming the outcome of the
    elections which was accepted by Presidential candidate Raila
    Odinga after his legitimate challenge before the Court marks an
    important milestone.
        Elections are always the product of a political process and
    Kenya's 2013 elections resulted from popular reforms that not
    only set the stage for the vote and for the country to redeem
    its reputation. Therefore, Mr. Chairman, it is important that
    we look beyond the Presidential elections. For instance, the
    Jubilee Coalition headed by Uhuru Kenyatta, won 195 of the 349
    National Assembly seats while the Coalition for Reform and
    Democracy, headed by Raila Odinga, won 143. In the new Senate,
    Jubilee secured 34 seats, while CORD won 27 of the 67 seats. At
    the county level, Jubilee has 24 governors, CORD has 23. And
    while Jubilee controls 26 county assemblies, CORD controls 21.
        Sadly, not one woman was elected to the Senate, nor was one
    woman elected governor. Mr. Chairman, this illustrates that
    there should not be a zero sum political attitude suggesting
    that the winner takes all and the loser loses all following the
    March elections. While there are likely to be substantial
    difficulties, especially in the devolution process, there's a
    basis for positive development, particularly if genuine
    political spaces maintain for opposition parties and dialogue
    and accountability efforts and a move away from impunity is
    guaranteed.
        Mr. Chairman, the Kenyan electoral process presents lessons
    that are useful when considering other countries and other
    elections in Africa and beyond. A few of the most salient are
    as follows: Ultimately, it is the people of a country who
    determine the credibility of their elections and the country's
    democratic development. Additionally, while elections are a key
    ingredient of democracy, it should be understood that they are
    not synonymous with democracy. Thus, there is much more to be
    done to advance Kenya's democratic process.
        Secondly, assistance by the international community to
    support democratic processes should begin early and be robust,
    coordinated and conducted in a proactive manner that respects
    the sovereignty of the host country. In this sense, election
    assistance must be seen as much more than a technical matter
    and should address important factors in the broader political
    environment, which was done in Kenya.
        Third, systematic observation of election processes by
    nonpartisan citizen election monitoring organizations and
    international observers, which engage constructively with
    election management bodies, can make vital contributions to
    improving electoral integrity and public confidence. Such
    systematic, credible, independent verifications were not
    present in the 2007 elections.
        Fourth, developing reliable communication among political
    parties and electoral authorities can improve the credibility
    of election processes and mitigate potentials for election-
    related violence. The efforts of the IEBC and the political
    parties through the Political Parties Liaison Committees at the
    national and county levels increased the potential for
    peaceful, credible elections, including over the tense election
    results.
        Finally, Mr. Chair, there appears to be an emerging
    adherence to the rule of law and recourse to the courts for
    resolution of election-related disputes as opposed to past
    practices of taking to the streets and inciting violence. The
    court cases in Kenya and Ghana challenging the election results
    were watershed moments for the African democratization process,
    especially because the contestants accepted the authority of
    the country's highest courts in both cases.
        In conclusion, Mr. Chair, it is clear that the recent
    Kenyan electoral process represents a reversal of the country's
    2007, 2008 electoral violence. In fact, the elections and the
    challenges to the results strengthened the democratic
    institutions of Kenya and hopefully will serve as a hallmark in
    steering the country toward a culture of peace and tolerance
    during future elections. NDI stands ready to continue to assist
    the country. Thank you.
        [The prepared statement of Mr. Jennings follows:]

                                  ----------

        Mr. Smith. Dr. Jennings, thank you very much as well and
    now Mr. Sweeney, please.

     STATEMENT OF MR. BILL SWEENEY, PRESIDENT AND CHIEF EXECUTIVE
        OFFICER, INTERNATIONAL FOUNDATION FOR ELECTORAL SYSTEMS

        Mr. Sweeney. Thank you, Mr. Chairman, and Ranking Minority
    Member Bass, for the opportunity to testify before the
    subcommittee on the recent general elections in Kenya. IFES, in
    a joint venture with the other organizations represented here
    today, received a grant from USAID in May 2011 to provide
    technical assistance to build the capability and sustainability
    of the newly-formed Independent Electoral and Boundaries
    Commission known as the IEBC. I was in Kenya during this
    election and had the chance to meet with Chairman Ahmed Hassan
    and the IEBC Commissioners on several occasions. ``Kenya will
    not burn'' is what Chairman Hassan said to me. His message was
    powerful, memorable, and accurate.
        Mr. Chairman, IFES was able to work with the new election
    commission to implement a number of very high profile reforms.
    These include five major pieces of new legislation, creating
    systems to handle political party registration and candidate
    nomination, redistricting of electoral boundaries, registration
    of 14.3 million voters in less than 1 month, recruitment and
    deployment of 260,000 new poll workers and introduction of
    biometric voter registration, electronic voter identification
    and a results management system. This and more was accomplished
    in under 15 months. The scale of what the IEBC was able to
    accomplish was ambitious and impressive even for the most
    seasoned election commissions. This election has been
    recognized as peaceful and credible by most international and
    domestic stakeholders. Nevertheless, it does raise at least one
    key question for development agencies and implementing
    organizations. How can we better help our partners manage
    expectations when a society demands more change in public
    administration at a faster pace than can be realistically
    implemented?
        In Kenya, there was an attempt to implement too much
    technology in too short a time. In countries where there is a
    trust deficit due to both past behaviors and suspicions about
    the process, the choice often is new election technology. There
    are issues around adapting, procuring and then deploying new
    technology in any political environment. In Kenya, due to
    massive pressure from the political leaders of all parties and
    civil society, the IEBC decided to implement three new
    technologies simultaneously, technologies that were dependent
    on infrastructure such as reliable electric power and
    accessible cellular channels. This situation is where
    international technical assistance from trusted organizations
    can make a difference.
        Some possible outcomes, such as abandoning paper lists at
    polling stations and completely entrusting new technology, can
    be walked back. Other decisions can be implemented as best as
    possible with the partnership of experienced global personnel
    who know technology and the election process from decades of
    experience. Election technology, in general, is a great
    innovation and can enhance the trust, transparency and speed of
    information on Election Day. However, the technology has to
    work perfectly on Election Day. The election workers have to be
    trained in how to use the technology. The technology, like all
    other voting supplies, has to be distributed to the polling
    places on time. These are all serious, logical issues for every
    election commission.
        The Kenya assistance model represents a true partnership
    and reinforces the importance of international support to
    election management bodies. Elections are a process, not just
    an event. The IEBC and IFES are already reviewing lessons
    learned in how to prepare the reform agenda toward the next
    elections scheduled for August 2017.
        Mr. Chairman and members, thank you for your time. This
    concludes my remarks.
        [The prepared statement of Mr. Sweeney follows:]

                                  ----------

        Mr. Smith. Thank you very much, Mr. Sweeney. And the
    information you've conveyed, I think is astounding, 14.3
    million voters signed up in less than a month; 32,000
    electronic voter identification systems and the list goes on.
    I'm wondering, you did say that the failures in technology were
    really failures of project management. I wonder if you might
    want to elaborate on that. I have two brothers who are pilots,
    and they'll always be the first one to say that it's often not
    the machine, it's pilot error. So are we talking about people
    didn't know the process? How would you elaborate on this
    failure of project management, if you would?
        Mr. Sweeney. Thank you, Mr. Chairman, and first of all, I
    would never ascribe anything to pilot error.
        Mr. Smith. Okay. You must be a pilot.
        Mr. Sweeney. However, in the case of Kenya, for example,
    they accomplished great things. Their registration system
    involves a photograph and fingerprints. Those were organized
    onto machines for the 1,000 voters per polling station and the
    voters would then use their thumb on the machine so as to pull
    up identification. That was great as long as either there was
    electricity in the classroom where the polling place was taking
    place or the batteries worked. Now batteries are funny things.
    Sometimes they say they'll work for 12 hours, but then they're
    not completely charged and sometimes they run out of power
    because to take a thumbprint is a very large draw on a battery.
    And so 1,000 people over the course of a number of hours, the
    batteries in some cases failed.
        Now, there was a point where the political process and
    civil society said don't continue with the investment in the
    paper list. Let's completely rely on technology. The IEBC was
    able to make the point that, first of all, the paper list was
    what was the official register of voters as stated in the law
    that might not have been as fancy and as glitzy, but it was the
    official register. And secondly, if electric power or battery
    power failed, you had the backup. But finally, third, the
    election commission invested seriously in the identification
    process, so there were actual photo IDs next--photographs of
    every voter next to their name because they had gone through
    the registration process. And the list was constructed so that
    it could be used by a polling worker or a series of polling
    workers over the course of a 12-hour day, be flipped back and
    forth and not fall apart. Frankly, in my experience it was one
    of the best voter booklets I had ever seen.
        Mr. Smith. Including here, right?
        Mr. Sweeney. One of the best I had ever seen, sir. I don't
    choose to revise and extend.
        Mr. Smith. Okay.
        Mr. Sweeney. But it worked. And so if the electronic system
    didn't work, they had the official register of voters with
    photo IDs in a format that allowed every voter to be serviced
    by those poll workers. That's an example, if you will, of where
    technology was great when it worked and it was really
    impressive to see person after person put their thumbprint
    down, see their voter ID come up on that computer screen until
    the battery gave out. So these are some of the issues that
    you're dealing with. You noted generously in your testimony in
    your comments that IFES went out and purchased both cell
    phones, as well as SIM cards. Because of the lateness of the
    procurement by the IEBC on the cellular phones and the
    distribution of them, there were logistical issues in getting
    all of that out to all of the polling stations and there were
    training issues where frankly, I suspect, that some of the
    polling workers did not know how to put the new SIM cards into
    the old phones which resulted in problems. This is, quite
    frankly, not unforeseen, not a surprise. The Kenyan election
    law allowed both for a provisional vote system so that you had
    information for the first 3 days. That was always considered
    provisional and not official and then the election commission
    had 7 days to go through the process of a hand count of all of
    the materials as they came into Nairobi. That was all
    anticipated in the law, as was the period of the appeal process
    and judicial review. And these were all steps forward because
    of the disaster of 2007.
        Mr. Smith. It would appear, and all three of you can back
    this up one way or the other, that the IEBC had a very capable
    group of talented leaders who not only were well trained, but
    were also situation awareness types that got the job done,
    especially in light of the deadlines. You mentioned numerous
    political agendas. I'm not sure what that means, but you might
    want to speak to the importance of having very talented people
    that you saw on the job like at the IEBC in making this really
    happen. Because I have met with election commissions all over
    Africa, all over the world, frankly, and some leave a lot to be
    desired. They're handmade in the ruling party and they just do
    whatever the ruling party wants and when there's a contested
    election, they find more likely as we saw in Ethiopia in favor
    of what the ruling party wants. If you could speak to that, the
    talent.
        Mr. Sweeney. Mr. Chairman, if I can, first of all, if you
    looked at the criteria to become appointed a member of the
    IEBC, there were over 150 candidates considered by the
    Parliament. They had to produce their police records as to
    whether or not there were any arrests or liens, their income
    tax forms, all of their political activity. They had to swear
    not to run for office, I think, 5 to 7 years after this
    election. They took, to my way of thinking, probably the most
    difficult election commission to be a member of is India's, and
    they took the India standard, which only allows career civil
    servants who have got an unblemished record after 20 years of
    service to become members of the election commission. They took
    the Indian standard to a higher threshold.
        And the amount of disclosure that these candidates for
    IEBC, all of the candidates have to submit to their Parliament
    for selection was by any standard simply amazing. Income tax
    forms, police forms, academic records, everything and then
    these men and women were selected and they were dedicated to
    fulfilling their mission to their country. I know almost all of
    the IEBC members having met with them individually and
    collectively a number of times over the last 3 years. It is a
    tremendous group of very committed public servants who come
    from all walks of life. There was a chemistry teacher from
    middle schools. There was a former Ambassador to the United
    States who had been a career public servant. There was a
    lawyer. There was an accountant. It was a tremendous group of
    people who have committed themselves to Kenya's democracy.
        Mr. Jennings. Mr. Chairman, I would just add that all of
    the things that my colleague from IFES just said is true.
    However, this is a political process and there was a moment
    when the public confidence in the IEBC was lost. That's during
    the procurement process. There were accusations made of a
    number of the members and when the State House, the equivalent
    of the White House intervened, it created a problem. And that
    problem was difficult to overcome. We worked with the chairman
    for at least 5 years before he was even the chair of the
    Commission. So in terms of impugning someone's reputation
    that's not what I'm trying to point out here, because I think
    these are well-known public servants. But in the political
    process, whether it was true or not, a problem was created
    because of the procurement issue.
        The second thing I would add, sir, is that while there were
    these flaws, we still have to look at the progress that has
    been made in Kenya, a significant progress, a revolutionary
    Constitution, the best--one of the best on the continent.
    Besides the Constitution itself, the reform of the courts and
    perhaps the reason that Raila Odinga went to the courts was
    because of the confidence people now have. And now the
    devolutionary process, 47 new states have been created with new
    assemblies.
        So while the IEBC's vetting process took place, judges also
    had to be vetted. And this devolutionary process is very
    dynamic. It will be difficult for progress to be made in the
    short term and I think from the aid effect in this point of
    view that's one thing we have to watch. The short term
    pressures of an electoral process versus the long term
    sustainable development challenges that we face, especially in
    a country like Kenya that is the hub for security and
    communications and East Africa. If what we did was good enough
    to save one life, I don't think we should put a dollar value on
    it. And I think that in this particular case the Kenyan people
    are the ones who should be congratulated because they have made
    up their mind through their various peace campaigns that they
    were not going to go back to the violence of the past.
        Mr. Smith. Mr. Fagan.
        Mr. Fagan. I'll just speak quickly to this point because I
    believe my colleagues covered it very well. But I think
    Chairman Hassan did a good job. I saw him when he was in
    Nigeria for those elections observing just like me. So he took
    his role very seriously and even went to other African
    elections to see how other institutions were working. And I
    think that's an important thing for a lot of these chairmen of
    the election commissions to do is to get to know other
    elections on the continent. And Nigeria in 2011 was probably
    one of the best ones he could have witnessed.
        As Dr. Jennings mentioned, prior to the election there was
    controversy. There was a crisis in their public image because
    of the biometric voter registration procurement issue. They
    probably could have done a much better job in communicating to
    people, but I think even in the last period between the
    election and the election results, they kept people informed.
    They told people about their mistakes. They kept people
    informed which was good. What we think is important, but what
    the Kenyan people believe is much more important. And you have
    about 50 percent of the population that probably very much
    respects the IEBC, but maybe slightly almost 50 percent that
    might not. We have to remember that other side of the country.
    So while they conducted themselves very well, we have to
    remember what the Kenyans think.
        And we also have to remember not just the Presidential
    elections were held, Kenyans voted for five other elective
    positions. And I don't know the numbers, but very few
    challenges to those positions. So all in all, I would say a
    good elections process and a job done well by the IEBC. A lot
    of lessons learned, but a good job.
        Mr. Smith. Mr. Fagan, you said in your testimony that Prime
    Minister Odinga even commented that Kenya could not be run via
    Skype at The Hague in reference to the pending ICC trials
    against Kenyatta and his running mate. I'm wondering if the
    U.S. position on that, the warning that was issued earlier on,
    have any impact? Did it swing in either way? Was it a
    nonfactor, and people just decided on their own who it is that
    they wanted to support?
        Mr. Fagan. You know, I can't speak for Kenyans on whether
    the international community's position on the Presidential
    candidates impacted their votes. I think some people will say
    maybe that emboldened some people to vote more because they
    wanted to say this is a Kenyan election, this is our process,
    we don't want the interference of the international community.
    So it's hard to say whether or not the international
    community's stance which was never fully--they never fully
    endorsed one candidate over another, but certainly there were
    some statements made by officials from our Government and other
    EU governments which probably slightly favored one candidate
    over another. Just be careful how Kenyans voted because of the
    repercussions that could be made. But those repercussions we
    don't know yet. Both President Kenyatta and Vice President Ruto
    have been cooperating with the ICC. And as long as they
    cooperate, I think the U.S. Government and other governments
    will have to take that into consideration in how they deal with
    them.
        When we look at Zimbabwe and we look at the sanctions on
    those leaders, the U.S. Government still deals with those
    leaders obviously. President Mugabe is not allowed in this
    country, but we still have an Ambassador there. We will have an
    Ambassador who has presented his credentials to Mugabe, so
    there are a lot of ways to deal with the Kenyan Government. And
    I think the United States will find ways to do that because it
    is such an important ally.
        Mr. Smith. Finally, the role of faith-based NGOs in civil
    society in promoting participation as well as nonviolence, and
    Dr. Jennings, I think your point made about needing to look
    beyond just the Presidential elections, that breakdown of
    Jubilee versus the Coalition for Reform in Democracy looks like
    there are a whole lot of contested elections with not an equal,
    but a very credible, outcome that people were picking and
    choosing rather effectively. They didn't just go for one side.
        Mr. Fagan, you talked about how important it was for some
    to be at other elections like in Nigeria. Were there many other
    Africans, particularly those who were in the queue this year
    and next, observing and drawing some good lessons?
        I know, Mr. Sweeney, you said there will be an event very
    soon on lessons learned. Please convey that if you would to the
    subcommittee so we can send it out based on your insights and
    others as well. But if you touch on that, I'll yield to my
    friend, Ms. Bass.
        Mr. Jennings. Thank you, Mr. Chairman. We can't forget how
    polarized this environment was. It was quite a volatile
    situation and so any advantage that either the major
    contestants could find, they would make use of. I think for the
    record we should state and understand President Obama's
    statement was very well received. It wasn't seen as being
    controversial at all. There were other statements that people
    tried to say contradicted President Obama's statement. And
    there was more of a nationalist tone of, ``respect our
    sovereignty'' position was taken by a number of the
    contestants.
        It's understandable in a political situation that is as
    close as it was and everybody predicted. In fact, we thought
    there would be a runoff, but the numbers and the results proved
    that it's still a fairly divided country.
        Let me just say on the faith-based participation, it was
    massive and there were calls for peace for more than a year.
    The calls were so resounding that many people said they had
    peace fatigue, but whether it was the churches or the mosques
    or the synagogues, everyone was calling for peace and that's
    what I was saying, referring to earlier, that it was the Kenyan
    people who had determined. Sadly, 19 deaths did take place. But
    compared to past electoral violence, not only 2007, but all the
    past elections, it's a very tiny amount of deaths.
        With respect to the public, I think the role that the media
    played was significant. There were--people felt like they had
    clear choices here because of the role of the public debates
    that took place and they knew what they were voting for. And
    again, I think the numbers suggest that the society is fairly
    clear about which candidate they wanted to vote for.
        Under this is something that we may be a bit uncomfortable
    discussing and that is the fact of ethnic divisions that exist
    within Kenya, but I think that Mr. Kenyatta and Mr. Ruto are
    together in an unlikely coalition and so they should be up to
    the task of managing the diversity of that country. And I think
    that's the lesson that again is something that can be shared
    with others in Africa. Thank you, sir.
        Mr. Smith. Thank you.
        Mr. Sweeney. Mr. Chairman, I'd just make two or three quick
    points. Number one, the election commissions in Africa have a
    history of observing each other's elections. There's a great
    deal of learning, a great deal of shared experiences. IFES and
    others help facilitate that. We had colleagues from the
    Liberian election commission as part of our team in Kenya. We
    hosted an evening of the South African, Nigerian, Liberian, and
    Kenyan election officials before the election so they could
    compare notes and then follow up afterwards. There were also a
    number of senior election administrators from a number of
    countries who were part of either the Commonwealth observation
    delegation or the European Union delegation. Former Chairman
    Quraishi of India who was very much a mentor to the Kenyan
    process was there as a member of the Commonwealth delegation.
    So within the industry, if you will, there was a great number
    of lessons learned from other experiences that were then
    finally applied in Kenya, but there's never such a thing as a
    perfect election. So we know that some of those experiences
    will then show up in trainings and conferences in other
    countries. That's part of the election administration
    profession. So that was very robust, both before the Kenyan
    election, the IEBC members were very involved in learning from
    other societies and countries and that was evident in both the
    evolution and passage of five new election laws as well as
    other issues throughout the entire process.
        Secondly, the issue that you raised was known to all Kenyan
    citizens. This was not a secret. It was a matter of public
    debate. They voted and they elected a team that was well aware
    of the questions raised by the ICC. This is not a secret, and
    it's up to Kenyans as to how they voted and how those campaigns
    projected that information out to their voters. No one was shy
    about it from what I could see. It was a matter of public
    debate.
        My final point would be that we are already working with
    the Kenyan election commission looking at what went wrong, what
    went right, what we could do better. Some issues are in the
    law. Some issues were in the process of public procurement.
    Some issues were in communications. Every election commission
    that is professional takes a look at what happened last month
    and tries to figure out what is best. And today's Kenyan
    Supreme Court comments on the procurement process I'm sure will
    be part of the lessons learned.
        Mr. Smith. Ms. Bass?
        Ms. Bass. Thank you very much, Mr. Chair. I just want to
    take where you were, just commenting Mr. Sweeney about no
    election is perfect. You know, I don't want to discount in any
    way, shape, or form the violence that took place this time and
    of course, the violence that took place the last time, but you
    know, from your testimony, I think that there's been a lot to
    be admired. I was joking with the chair, I don't know when we
    had an election turnout where there was 86 percent. I don't
    think we'd know what to do.
        I do think we really do, and as a couple of the witnesses
    said, we need to look at this election in the context of a
    particular situation.
        So I wanted to ask a few questions, I believe Dr. Jennings
    you were mentioning that there were no women that were elected
    as governor or to the upper chamber of the Parliament and that
    there were 96 female candidates. How many were elected though
    to other positions?
        Mr. Jennings. Ms. Bass, let me clarify. There were none
    elected, but there were 18 who had been appointed in the
    Senate.
        Ms. Bass. Oh, I see.
        Mr. Jennings. But out of the 416 members of Parliament, 85
    women are there. In the new constitutional arrangement, there
    was supposed to be----
        Ms. Bass. Almost our ratio. I think it's a little more.
        Mr. Jennings. About 17 percent in the U.S. Congress. But
    the point that we were making is that they weren't elected.
        Ms. Bass. I understand. They were appointed. Okay. And in
    terms of the technology and machines, where were they made?
    Where were the voting machines from? The machines that you were
    talking about that required the battery, electricity, where
    were they from?
        Mr. Sweeney. I don't know the exact source of where they
    were manufactured. The biometric identification system was done
    by a Canadian firm. The results transmission, I know the phones
    were primarily Nokia phones, but I can't tell you where they
    were manufactured. The voter registration process, I'll have to
    get back to you with the exact locales of the firms involved.
        Ms. Bass. Okay, I'm interested in that and in particular
    because Dr. Jennings, you were pointing out the problems with
    procurement. Were you referring to the procurement of this
    technology or were there other procurement issues as well?
        Mr. Jennings. The procurement of some of the technology
    that was just mentioned, yes.
        Ms. Bass. In regard to the ICC, I wanted to know if you
    could--any of you, could speak to the views of the Kenyan
    public in general toward the ICC and then in particular, the
    specific case, the Kenyan case. And do you expect President
    Kenyatta and Deputy President Ruto to continue to comply?
    Aren't they due in the next couple of months to go before the
    ICC?
        Mr. Jennings. The Vice President has a case at the end of
    May. And the President has to respond at the end of July.
        Ms. Bass. Do you expect them to go?
        Mr. Jennings. It's not an issue that NDI covers, ma'am.
    What I've mentioned earlier is that the polarization was, in
    part, a result of the fact that you had a contestant and his
    running mate that had been indicted by the ICC. And prior to
    the election process taking place, the visit by President--the
    Sudanese President to Kenya had become a big issue. So it's
    only in the political context that we were commenting on it,
    but NDI doesn't take a position on the ICC or whether or not
    the candidates will comply.
        Ms. Bass. Okay, and I didn't mean you'd take a position. I
    just wanted to know your opinions. Maybe the other two
    witnesses can respond. What do you think is going to happen?
    Wasn't there an issue before as to whether the witnesses would
    show up, the witnesses that have made charges against both the
    President and Deputy.
        Mr. Fagan. Well, what I would say is just base it on what
    they, themselves, had said during the election campaign, during
    the two debates that took place. President Kenyatta, now
    President Kenyatta, then Deputy Prime Minister, indicated that
    he would continue to work with the ICC and attend the hearings,
    whether he and Vice President Ruto do that, we'll see. They
    have indicated they will cooperate. But if they go, I don't
    think we can base it on anything until they go. And that's
    when--yeah. So we'll have to see.
        Mr. Jennings. In the President's inaugural address, he said
    that he will continue cooperate with international
    organizations.
        Ms. Bass. Mr. Sweeney, did you want to say something?
        Mr. Sweeney. I would just take him at his word, ma'am.
        Ms. Bass. Okay. What is your assessment of rumors that the
    new Kenyatta government may push for restrictions on civil
    society? Have you heard those rumors? Do you have any thoughts
    about them?
        Mr. Jennings. Actually, it's an unfortunate situation. We
    are very concerned about space being maintained for civil
    society. The reforms that we are all congratulating the Kenyans
    about actually were largely a result of active civil society
    pushing for these reforms for more than two decades. There's a
    bill that was recently adopted and it just coincides with the
    election of President Kenyatta, but that bill was promulgated
    prior to his election which does close space.
        Just recently as in yesterday, more than 8,500 civil
    society organizations have reapplied for their registration.
    And one of the things that we have said and we would hope that
    the new government would pay attention to is that as long as
    there is space for a vibrant civil society, then it is possible
    that these reforms can be achieved. And that is the real
    measure of whether or not the investments made by governments
    like the United States or other governments was worth the
    investment or not because that's at the end of the day, whether
    the Kenyan people can live in a democratic society and there's
    an inclusive social and economic development process is the
    real measure of what we do.
        Ms. Bass. Can you tell me what you think Odinga's role will
    be now? Especially when I was looking at the ratios in terms of
    the majority and minority parties, they're almost neck and
    neck. Does he continue to play a leading role in opposition
    even though he lost the election? What do you anticipate from
    him?
        Mr. Fagan. Raila Odinga has been in politics his whole
    life.
        Ms. Bass. Right.
        Mr. Fagan. His father was the first Vice President.
    Kenyatta's father was the first President.
        Ms. Bass. Right.
        Mr. Fagan. So historically, he's been connected to the
    politics of that country since probably his birth. So I would
    expect Raila Odinga to continue to play a prominent role in
    politics. Will he run for President again? I don't know.
    Anything is possible.
        If you look at history, if you look at Raila Odinga, if you
    look at the major political actors over the past, I would say
    even two decades, they reinvent themselves. They join different
    political parties----
        Ms. Bass. We know about that, too.
        Mr. Fagan. There's a lot of party hopping. He joined KANU
    as the ruling party. He was thrown in jail under KANU and
    President Moi. I think Raila Odinga plays an important role in
    Kenya. He's a leader of one of the largest ethnic communities,
    but he's also a leader of many different political parties in
    the past and probably in the future. So he will continue to
    play a major role in this whole process. I don't doubt it. And
    I think maybe Dr. Jennings had mentioned this. President
    Kenyatta and Vice President Ruto were completely at odds in the
    last election.
        Ms. Bass. Right.
        Mr. Fagan. So anything can happen in Kenyan politics. So I
    can't predict who is going to be doing what probably in the
    next 5 years or 2 years because these alliances could change
    very quickly.
        Ms. Bass. I know a number of the news reports this being
    his third try that he probably wouldn't run again.
        Mr. Jennings. Ms. Bass, I would say that as Mr. Sweeney
    said about Kenyatta, take him at his word, I think we can
    definitely take Raila Odinga at his word. During his
    congratulatory remarks to Mr. Kenyatta, he said we are now the
    official opposition. I think that he is an African leader, is
    well known on the continent of Africa, and he's been active as
    Paul mentioned for more than four decades. He's an
    international figure.
        Our understanding is that he's met twice already with Uhuru
    Kenyatta. What they talked about I have no way of knowing, but
    it would seem to me that to walk away from the numbers that I
    just read might not make sense.
        Ms. Bass. Right.
        Mr. Jennings. Now that doesn't mean that Ban Ki-moon won't
    offer him a position or something. I don't know. But it would
    seem that wherever he is in this world that I think he is a
    committed democratic activist and he wants to see Kenya be
    democratic.
        There's a saying that Africa doesn't need big men, that it
    just needs strong institutions. I would amend that a little
    bit. I do believe that Africa needs good statesmen and good
    stateswomen and I think that what Raila Odinga did showed that
    he's a statesman and hopefully he'll continue to play that
    role.
        Mr. Sweeney. I have to agree with my colleagues. You look
    at his family. You look at his background. You look at
    everything the he's done in his life and it is very, very hard
    to imagine him not continuing to have an impact on Kenyan
    politics. But what that role and title will be, I think it will
    be up to his invention.
        Ms. Bass. Thank you. Thank you very much, Mr. Chair.
        Mr. Smith. Mr. Meadows.
        Mr. Meadows. Thank you, Mr. Chairman, and I thank each of
    you for coming to testify today.
        Mr. Fagan, I'd like to start with you. You mentioned in
    your testimony about the political parties are still in need of
    reform as they are really not based on a platform or
    ideological point of view. Do you think locally politicians
    understand that that need for reform and I guess the second
    follow up to that is do you see that improving or changing?
        Mr. Fagan. I'm not pessimistic about the parties in Kenya,
    but if you do look at them from a holistic approach, especially
    in the past two election cycles, politicians jump from one
    political party to another.
        Under the 2002 elections, most of them coalesced around the
    NARC Coalition, basically to defeat KANU and Uhuru Kenyatta in
    his first attempt at the presidency. So politics is a game of
    coalition building. And in and of itself is not a bad thing,
    but these political parties tend to be led by individuals that
    are driven by ethnic groupings. But when I think about these
    elections and even through these political parties, there's a
    lot of basis on ethnicity and where they come from and that's
    part of the calculus when putting these coalitions together,
    can we get the Luo population, can we get the Luhya population,
    can we get the Kalenjin population, which populations can we
    get? Can we get the Coast? Those calculations certainly go into
    it.
        But what I think what we saw in these elections was a lot
    of talk about issues, certainly. And I don't want to just keep
    on bringing up the Presidential debate, but that was historic,
    having two Presidential debates. And these debates, they put
    our debates to shame, no offense to President Obama or Governor
    Romney, but you knew exactly what they were going to say. These
    guys were going at each other, talking about the most troubling
    issues facing Kenya, the ICC, land issues, the issues that
    really matter to Kenyans. So I'm positive and optimistic that
    the political parties will be reformed. There needs to be a lot
    done on the internal processes.
        Mr. Meadows. So are you suggesting that as we reform those,
    the Presidential debates will become more like ours?
        Mr. Fagan. We'll see.
        Mr. Meadows. I hope not.
        Mr. Fagan. I hope not either. It was very refreshing to
    watch the debates, but I think the parties have a long way to
    go in the area of internal party democracy ensuring that more
    people are able to get to those elected positions fairly.
    There's a lot of money that goes around. Women were left out of
    the process quite a bit. So there needs to be a lot more done
    in the area of political party reform, especially in the area
    of financial reform.
        Mr. Meadows. And so as we look at that, are you saying that
    that's part of our focus is to help them with the reform and
    their political parties? Because that's a pretty far reach.
    We're taking really a world view in a society that culturally
    has been that way for a lot longer than we've been in existence
    in trying to say okay, we want you to be devoid of that and now
    all of a sudden support a platform and become political. Is
    that--I'll let each one of you.
        Dr. Jennings, can you comment on that?
        Mr. Jennings. I'd love to, sir. We've been working with
    political parties in Kenya specifically for the last 5 years. I
    think they've made tremendous progress. They may not
    necessarily be ideologically driven, but the issues now are
    being addressed more and more. They have put forth manifestos
    that did not come from some consultant somewhere who was hired
    to put it together for them. The parties are debating. One of
    the parties whose candidate was--in fact, the only woman
    running for President, their party was perhaps one of the best
    organized parties in Kenya. The TNA, Uhuru Kenyatta's party,
    those were real parties. I'm sure that if I was Kenyatta I
    would be trying to attract people to my side, too, when you
    look at the numbers within Parliament.
        I think it is an area that U.S. Government funding should
    continue. The work that we've done as a party institute is to
    try to support the building of more democratically-structured
    parties. And we've run campaigns that stick to the issues. If I
    vote for you because you're from my village, or from my
    neighborhood and I don't have water, well, what good is that to
    me if my real issue is having clean water and some sanitation.
    So by raising real issues it allows the political parties to be
    closer to the people and to structured a little bit
    differently. I think it is an appropriate area for U.S.
    Government support.
        Mr. Meadows. Mr. Sweeney?
        Mr. Sweeney. I'm going to answer this first from the IFES
    perspective and then the second from a personal perspective if
    I may indulge you.
        Mr. Meadows. Sure.
        Mr. Sweeney. From the IFES perspective, we work with the
    election management bodies. We leave the working with political
    parties to the party institutes and to other organizations like
    that around the world.
        On a personal basis, I worked with Chairman Fascell many,
    many years ago to help create the National Endowment for
    Democracy and the idea was that the political party model was
    something that we wanted to introduce as a country, as a
    philosophy into newly-emerging democratic systems. And by and
    large, I would argue that the introduction of the democratic
    model and the political party system as a way of organizing has
    served many countries very, very well and I commend the work of
    both the Republican and the Democratic and the German and the
    Austrian and a whole variety of other countries as they
    introduce their party models.
        Now speaking as someone who spent a decade working for a
    political party with the closeness of these numbers and the
    history of Kenya's moving alliances, it wouldn't surprise me if
    there's not going to be a fair amount of political reform in
    the next few years by the political parties as they try and
    address the electorate at the next election. And that's how it
    should be. And as long as that process is open and free and
    clear, that's one of the reasons why the National Endowment was
    created by the Congress after President Reagan's speech at
    Westminster that we're all remembering because of Mrs.
    Thatcher's funeral and it's an investment that's been paid off
    very, very well for by the democracies around the world that
    have invested in that dialogue in my judgment.
        Mr. Meadows. is there a danger where we look at the
    sovereignty of a nation like Kenya or any others and where we
    come in and try to assist them in that process where we
    infiltrate their world view? I don't sense that, but just
    thought I would----
        Mr. Sweeney. If I may respond, yes, there is the danger.
    But you're also dealing with the professional politicians of a
    country.
        Mr. Meadows. Right.
        Mr. Sweeney. And they tend to be able to speak up for their
    country, for their country men and women, for their own
    interests. These are not--these are professional politicians.
        Mr. Meadows. Sure.
        Mr. Sweeney. If you as an outsider, even in terms of our
    work with the technical side of running an election, if you
    cross over the line, you get pushed back. Your advice is not
    followed. You are no longer welcome and I suspect that's true
    of political party work as well.
        Mr. Meadows. Mr. Fagan?
        Mr. Fagan. What I would say in the case of Kenya in
    particular is when we're working with political parties and we
    haven't worked with political parties during this election
    cycle. NDI has done that much more, is that we'd be working
    with them on trying to follow their own laws.
        Mr. Meadows. Right.
        Mr. Fagan. So it's not as if we're trying to influence them
    on their ideology or what not. We're just trying to help them
    follow their own laws when----
        Mr. Meadows. Undergirding the rule of law and the
    importance thereof.
        Mr. Fagan. Exactly.
        Mr. Jennings. Mr. Meadows, it's important, the point that
    you raised, it can be perceived as imposition and so how you
    engage and how you work is very important. You have to adopt
    culture, the appropriate methods. We have to make sure that
    mutual respect, all of the principles of effective aid, respect
    for the host countries, understanding of who you are even.
        And the point that I was making earlier about tremendous
    progress, there were 33,000 polling streams and the Kenyan
    political parties, the two main parties, covered 80 percent of
    those or more. So the level of organization is there and they
    do want to learn from us, especially because Kenya is a hub for
    information and communications technology and innovations that
    have been made by the political parties, especially in the last
    two elections, they do want to understand that. So I think it's
    how we engage more than any kind of pushback on imposition.
        Mr. Meadows. Well said. Mr. Chairman, do I have time for
    one more question? Okay.
        Mr. Fagan, you mentioned the importance, I think in your
    testimony, of civic and nongovernmental organizations as they
    affected the voting, the role of the voters and education. What
    do you see as the greatest threat to that involvement of those
    NGOs or civic organizations because you said you know, we need
    to continue to grow that and there seemed to be an implication
    that if we didn't have that, then the whole system would be
    undermined. What do you see as the greatest threat?
        Mr. Fagan. Well, I don't think there would be a threat to
    our continued support to civil society. In fact, I think civil
    society plays a huge and important role in Kenyan society. And
    when I say civil society, I'm also including faith-based
    groups. This includes churches, mosques, and other groups that
    provide services to Kenyans in general when the government
    cannot.
        We work very closely with civic organizations throughout
    the country. I don't know how many counties our staff covered,
    but we trained directly 50,000 Kenyans. Our staff of about six
    to seven people training, going throughout the country and
    training people on what the election means, the whole
    devolution process, 50,000 people. And that doesn't include
    what we call our training of trainers programs which probably
    impacted hundreds of thousands and the radio programs that we
    sponsored which we hope millions of people listen to.
        So our support, whether it's through IRI, through the
    National Endowment for Democracy or the USAID, it's invaluable
    and right now I think the question was asked about this PBO,
    this public benefit law.
        Mr. Meadows. Right.
        Mr. Fagan. We don't know what kind of impact that will
    actually have on civic organizations. But the country that's
    being thrown around and I don't necessary believe this, is
    Ethiopia. Ethiopia has very strong laws against civic
    organizations and foreign funding. And we hope that doesn't
    happen in the Kenyan case.
        Civic organizations play an enormous role in Kenya. They
    were prominent in bringing multi-party democracy to Kenya in
    1992.
        Mr. Meadows. Right.
        Mr. Fagan. So they're very important.
        Mr. Meadows. So that would be the threat is to follow
    quote  deg.``the Ethiopian model'' that may or may not
    be active.
        Mr. Fagan. I hope not.
        Mr. Meadows. Okay, thank you. And I'll yield back to the
    chair, but I would ask if any of you have for your testimony,
    when you talk about the public procurement issues and what
    would be some of those issues that you could respond to the
    committee and let us know anything that needs to be highlighted
    and looked at from a congressional standpoint that would be
    very welcome. I thank each of you for your testimony and I
    yield back to the chairman.
        Mr. Smith. Mr. Meadows, thank you so very much. I would
    just note parenthetically that speaking about political
    parties, most of us have seen the absence of it in the chaos it
    produces when there isn't a family. And when there is a two-
    party system, yes, other parties should participate but very
    often things don't happen. Governance is set back and it often
    leads to chaos. But I would note that Greg Simpkins was the
    Deputy Regional Director for IRI back in the early 1990s
    working on just that, building political parties. So on this
    committee, we're very appreciative to have him as our top
    African expert on the subcommittee.
        I'd like to now yield to the vice chairman of the
    committee, Mr. Weber, the gentleman from Texas.
        Mr. Weber. Thank you, Mr. Chairman, and following up your
    remarks about the absence of political parties that's probably
    why Mark Twain said he didn't vote for politicians because it
    just encouraged them. Maybe he was on to something there.
        Mr. Fagan, I've got some questions for you. Was IRI, well,
    actually, these are questions for all three of you. Was IRI
    involved in the 2007 election?
        Mr. Fagan. We had a program there, yes.
        Mr. Weber. You had a program. How about you, Dr. Jennings?
        Mr. Jennings. Yes, sir. We did not have a big program, but
    we were there.
        Mr. Weber. Mr. Sweeney?
        Mr. Sweeney. We had a modest program as well.
        Mr. Weber. Okay. At what point were you--you may have never
    left. These are questions for all three of you again. At what
    point were you all able to come back in. I mean there was a lot
    of violence. Did you have to exit because of that violence?
        Mr. Fagan. No. Staff was there through it. We've had a
    permanent presence on the ground since 2002. So there was no
    exodus whatsoever.
        Mr. Weber. So you all have been there the whole time.
        Mr. Fagan. Right.
        Mr. Weber. Dr. Jennings?
        Mr. Jennings. We did not evacuate our staff, but we were in
    touch. We only had a small staff of about five or six people.
    We were in touch with them on a regular basis during that
    period.
        Mr. Weber. Okay. Mr. Sweeney?
        Mr. Sweeney. Same.
        Mr. Weber. So it's safe to say that you all remained on the
    ground there during the last 6 years. At what point did you
    gear up to start ensuring that the 2013 elections were
    different?
        Mr. Jennings. In our case, shortly after we saw that the
    international observation failed, there were not civil society
    groups that were observing the election, and we thought that if
    there was a Parallel Vote Tabulation in 2007, maybe some of the
    violence could have been avoided. So we set out in our
    conversations with USAID and other development partners to say
    for the 2013 elections we think this is what needs to be done.
        Mr. Weber. When was that, was that in 2008, 2010?
        Mr. Jennings. Yes, in 2008.
        Mr. Weber. 2008.
        Mr. Jennings. We have a presence in Kenya since the mid-
    1990s.
        Mr. Weber. Okay, I'm specifically focusing between the time
    of the 2007 to 2013.
        Mr. Sweeney, how about IFES?
        Mr. Sweeney. IFES was involved with--in dialogue with the
    election commission as it was being organized. They
    participated in our November 2010 election program here in the
    United States. Our meetings continued and I would say we
    staffed up in a major way and started a major program in the
    summer of 2011.
        Mr. Weber. Okay, so you all did not leave. You all were
    there and you had a presence on the ground and you started
    2007, 2008.
        And Mr. Fagan, when did you start gearing up for 2013?
        Mr. Fagan. We had continuous programs, so as soon as the
    violence died down and what not, we continued doing our work
    with our partners which at the time was mainly with Parliament,
    members of Parliament.
        Mr. Weber. Okay. So one of the complaints I heard you all
    testify about was the procurement process that it didn't go
    smoothly, it didn't run well. And if you all were there for so
    long, why didn't you all help them begin that process early,
    early on?
        Mr. Sweeney. I think the issues were mostly around the
    election commission's procurements. We did advise the election
    commission on a number of options. There were a number of
    procurements that took place. Some of those procurements became
    controversial, not all of them. The election commission
    followed it's own procedures on many. On some it frankly ran
    into some difficulties within their own government.
        Mr. Weber. Were they short funding?
        Mr. Sweeney. I'd have to check on the funding issue.
    Because we're dealing with a multiple of issues that created
    the perception that my colleague referenced.
        Mr. Weber. Okay, and Mr. Fagan, you said that women were
    supposed to be the big winners.
        Mr. Fagan. Right.
        Mr. Weber. But they really weren't. Number one, why were
    they supposed to be, and number two, why weren't they?
        Mr. Fagan. Well, under the new Constitution, they're
    supposed to have at least one third representation within all
    the legislative bodies and the courts actually ruled that this
    can be gradually implemented and not implemented----
        Mr. Weber. Okay, so the numbers just aren't there yet.
        Mr. Fagan. Correct.
        Mr. Weber. Okay. You also stated that Kenya benefitted from
    other international donors during your testimony. What other
    donors were you talking about?
        Mr. Fagan. I probably will let Keith talk more about that
    because we only had U.S. Government funding.
        Mr. Weber. Okay.
        Mr. Jennings. The European donors, the Norwegian Ministry
    of Foreign Affairs, the Dutch, the British also were very--
    through their development organizations, they were very
    involved and may have been the largest contributor to the Kenya
    electoral process.
        Mr. Weber. Any Chinese money?
        Mr. Jennings. No. I think the Chinese position is that we
    are not involved in the political process. And that's based on
    my knowledge what takes place in other places----
        Mr. Weber. Above board, at least.
        Mr. Jennings. Yes.
        Mr. Weber. I'm getting back to what my colleague over here,
    Mr. Meadows said, what's the biggest threat? I'm trying to see
    if there's any other outside influences trying to come in and
    play in this arena.
        I think I hear you say, Dr. Jennings----
        Mr. Jennings. Well, the Chinese are very present and that's
    one of the issues that may have been fueling some of the more
    nationalist tendencies because there seems to be an alternative
    to the West. The Chinese were the first to congratulate Mr.
    Uhuru on his victory, even before the courts had ruled.
        Mr. Weber. Okay. Mr. Sweeney, you said that the elections
    were a process and not an event, I think was the way you stated
    that. There was a list that you said, the official paper list,
    when the electronics kind of bit the dust so to speak and
    someone maintained an official list. Who maintained that
    official list?
        Mr. Sweeney. The IEBC developed the voter list as part of
    the voter registration process. The list I referenced was a
    paper list that had photo identification that came off of the
    voter registration process so that if a voter came to a polling
    station and they were not using the computer-based biometric
    registration which was triggered by a thumbprint, they could
    then go to the official paper list and find that voter's
    information and that's what I was referencing, sir.
        Mr. Weber. And pardon my lack of knowledge on Kenya, do
    they all speak the same language?
        Mr. Sweeney. Yes and no. The official languages are English
    and Swahili, but there are many, there are about 40 to 50
    tribal languages as well.
        Mr. Weber. Right, okay.
        Mr. Sweeney. And in some places it differs in the level of
    fluency in those.
        Mr. Weber. Also, Mr. Sweeney, you said that the election
    law allowed for provisional ballots.
        Mr. Sweeney. No, there was provisional reporting.
        Mr. Weber. Provisional reporting.
        Mr. Sweeney. The way the system worked was on election
    night, they would count for the Presidential and they could
    report that count by cell phone to the national tally center.
        Mr. Weber. I got you.
        Mr. Sweeney. That provisional number was then made public,
    okay? To the media, to the political parties. However, that was
    subject to change.
        Mr. Weber. Subject to change. Here's my question about
    that.
        Mr. Sweeney. Yes, sir.
        Mr. Weber. How long was that law, if you will, or that
    ability to provisionally report in place? Did that exist in the
    2007 election?
        Mr. Sweeney. It did not exist in the 2007 election. The
    provisional results were accepted and broadcast by the election
    commission for 3 days following the election. Then the election
    commission announced that the provisional reporting system,
    which they were not satisfied with, was ending and now they
    were going to the official count. And the official count was
    reviewing the paper ballots and the election forms submitted by
    each polling station and then announcing those official results
    and they announced those official results over the course of
    the next 4-4\1/2\ days until they declared that they did not
    need to go to a runoff.
        Mr. Weber. Okay, I got you. And so I think it might have
    been you, Mr. Fagan, who said--I'm trying to remember multiple
    testimonies here, who said you think about 51 percent of the
    country, or maybe it was you, Dr. Jennings, believes in the
    system? I see the monkey getting on your back, Mr. Fagan.
        Mr. Fagan. I only said that because there was just over 50
    percent of the population that voted for Uhuru Kenyatta.
        Mr. Weber. So you're going strictly by voting numbers.
        Mr. Fagan. Correct.
        Mr. Weber. And then also, Mr. Sweeney, you said IEBC
    candidates were selected by the Parliament.
        Mr. Sweeney. Yes, sir.
        Mr. Weber. Two questions. How many are on the IEBC, number
    one, and is there that kind of faith in that board as well, on
    that commission?
        Mr. Sweeney. First of all, I believe it's an 11-person
    commission, but let me double check that for you.
        Mr. Weber. Okay.
        Mr. Sweeney. There were well over 150 candidates who
    applied for consideration to the Parliament. The Parliament had
    a specific screening committee and went through an exhaustive
    process to finally bring candidates before the Parliament to be
    voted on.
        Mr. Weber. High level integrity, better than the India
    model I think you said.
        Mr. Sweeney. That's what I said, sir. Yes, sir.
        Mr. Weber. Is there faith in the country in that process or
    were there cries of corruption, cronyism, favoritism?
        Mr. Sweeney. No, sir. I think the country was more than
    willing to entrust the IEBC with the responsibility for
    conducting the election. There was a number of public flurries
    around some procurement issues. There was some dissatisfaction
    when the provisional vote system did not work as well as
    expected. As one who was in some of those meetings, I can tell
    you the IEBC Commissioners and staff were even more
    dissatisfied than what was on the news media. But by and large,
    I think the country and after they went through the process
    which was established by the law, the Supreme Court was able to
    review all of that and Kenyans were able to credibly accept the
    results.
        Mr. Weber. Okay, and last question for you on that subject
    is--is there a--I started my questioning with you guys, how
    long were you there? Why didn't you act sooner, basically? We
    want to be gearing up perhaps for next elections. When is that?
        Mr. Jennings. 2017.
        Mr. Weber. 2017.
        Mr. Sweeney. The next elections are 2017.
        Mr. Weber. Is there a process in place with IEBC so that
    they're holding forums, whether it's town halls, public
    meetings? Do they hold their meetings openly? And are Kenyans
    getting in a chance to buy in and participate?
        Mr. Sweeney. As I said in my testimony, we're already in
    the process of planning the first meeting with the IEBC on the
    lessons learned and how do we go forward. Every election
    inevitably produces a set of reforms, some of which are
    legislative, some of which are administrative, some of which
    are simply practices.
        Mr. Weber. Okay.
        Mr. Sweeney. And I suspect all of that will be developed
    now that the court has ruled and the process is moving forward.
        Mr. Weber. And that will be in the public domain?
        Mr. Sweeney. Yes, sir.
        Mr. Weber. Okay. And then the last question, Dr. Jennings,
    you said that the judges had to be vetted.
        Mr. Jennings. Yes, sir.
        Mr. Weber. By who?
        Mr. Jennings. It was a public process that included people
    drawn from a number of places, but ultimately it was the
    Parliament.
        Mr. Weber. Okay.
        Mr. Jennings. Mr. Weber, let me just go back to one thing
    that you raised. Part of the reason that those of us who were
    not working with the IEBC raised this issue of the procurement,
    it was because they had the highest approval rating of any
    institution in the country. And so many Kenyans felt let down
    because they had invested so much confidence in the IEBC. And
    in the pre-election period, it was critical because of this
    polarization. So we're not attacking IEBC as being incompetent
    or as perhaps being corrupt. But it was the public perception
    and that way only because such a high standard had been held.
    And they had performed so well during the constitutional reform
    process. So I think it was the politics of the political
    environment that caused people to have less confidence. And the
    reason that this electoral reform issue is so important is
    because it's what now the opposition Raila Odinga has raised in
    his court challenge. That some of the counties, we should know
    soon, once the IEBC releases the official forms, may have voted
    more than 100 percent. We do know officially, 17 counties voted
    in the 90 percent rate. And that's why you have such an almost
    6 million versus 5\1/2\ million.
        Mr. Weber. I get that, when you talked about the
    procurement process. I think it was Mr. Sweeney in his remarks
    said that when you try to institute electronic, I forget how he
    said it, voting or whatever, a lot tried to be done in a short
    amount of time, basically. And so all I'm driving at is we want
    to make sure we have a policy in place that says by golly, they
    ought to be instituting that right now. They ought to be going
    back to that process, rebuilding that confidence and making
    sure this process is in place. That's what my questions were
    aimed at. Thank you.
        Mr. Chairman, I yield back.
        Mr. Smith. Thank you very much, Mr. Weber. Before I
    conclude, I just want to ask in your view will any of the
    election laws which obviously have been done very quickly have
    to be revisited and updates provided pursuant to lessons
    learned? And secondly, Mr. Sweeney, in your testimony you
    mentioned that election technology helps mitigate certain types
    of fraud, but it also opens the door to more technologically
    advanced forms of fraud. Perhaps you might want to elaborate on
    that and then we'll conclude.
        Mr. Sweeney. Thank you, Mr. Chairman. First of all, every
    election that I've seen results in an agenda for change for the
    next election. There will always be improvements in the
    process, and that's healthy. And I suspect that there will--I
    already know that there's discussion as to what parts of the
    Kenyan election law and regulation and process need to be
    changed, need to be looked at. And they will be looked at in a
    completely public way so as to maintain public trust and the
    integrity of the election process.
        In my testimony, I make the point that technology
    oftentimes has unanticipated consequences. And thus the
    stupidest way to try and steal an election is through ballot
    stuffing. Far better to figure out how to program the computers
    on results which is done far away.
        Now I will also say that we had some of the world's best
    experts in the computer process around elections so as to make
    certain that the Kenyan process was completely protected,
    contained, safe both from rumors about being hacked into and
    the reality of being hacked into. But you can see over time
    people try and think they're smarter than other systems.
        The one thing I would caution people about is not to live
    by anecdote. When you're living at trying to shift the outcome
    of a national election, you're not talking about one or two
    examples of voter fraud. You've got to find hundreds of
    thousands of votes cast. And in the case of Kenya, the IEBC
    spent months working to make sure that such errors, be they
    administrative and simply clerks writing down the wrong number,
    or deliberate, could not happen and that there was
    accountability. In the election forum per polling station, you
    had not only the signatures of all the election officials
    present who had management responsibilities, but all the party
    observers present by party, attesting to the fact that the
    number that was going on those forms were the numbers that they
    had all witnessed. And they were all under penalty of criminal
    law if they were lying. It was a very, very robust system. Very
    well thought out and then very well executed.
        Mr. Smith. Thank you.
        Mr. Jennings. Mr. Chairman, let me first say thank you for
    holding this hearing and giving us an opportunity to comment. I
    do think that the reason I said in the beginning of my
    statement that elections are political processes is precisely
    because of this. If you have a polarized political environment
    with one side getting 5\1/2\ million votes and another getting
    over 6 million, and the difference is 8,000 votes, our level of
    confidence in the Kenyan people's level of confidence has to be
    absolute, especially when the board that was in the Bomas
    returning center didn't add up. And so the logical thing for
    one side that's committed to the democratic process is to go to
    court. It was a legitimate decision by Odinga.
        Having said that, it is now up to those who have been
    elected and certified by the Supreme Court to continue to
    reform process. In my estimation, the electoral reform that is
    most needed is to the legal framework. There were a number of
    things unanswered. But I would also say and I'm sure that will
    be done because I know we're meeting with the political parties
    and that's on the agenda, but I would also say that this issue
    of space for civil society is one of the most critical things,
    but perhaps of all of the things the U.S. is well positioned,
    given our Federal system, to assist the Kenyans with is the
    devolution process. And I think there's a lot that can be
    learned whether it's the National Governors Association or the
    National Association of State and County and Local Officials
    that can be shared and that would make sense in this context.
        But I think that we have the luxury of sitting here. I'm
    not a politician. I don't have anything against politicians
    either, but I think in the heat of the moment in Kenya, the way
    that this election was handled and the role of the Supreme
    Court was absolutely critical and I think now people are
    willing to work together to move on for the future of that
    country.
        Mr. Fagan. Just getting back quickly to Mr. Weber's point
    of time, when looking at these elections of the next elections,
    now is the time to act. And I would echo what Dr. Jennings said
    especially in the area of where we should really look at our
    assistance would be on this devolution process and making sure
    it works. I know the ring gets larger. But also getting back to
    your point, about the laws, the electoral laws, I think it's a
    lot about enforcing the laws. A lot changed since 2010 with the
    new Constitution and therefore those laws need to be
    implemented, especially in the area of political party reform.
    We saw in the primaries they went--they didn't go as well as
    they could have. Parties missed deadlines, etcetera. So we
    really need or they need to really focus on just implementing
    their own laws. What else is there? But it is a constant
    process. I mean this is the first election held under this new
    Constitution and new framework. Obviously, changes will need to
    be reviewed and assessed. But I would implore upon them that
    they need to do it now rather than wait until 18 months before
    an election.
        Mr. Smith. Thank you. We will conclude the hearing. I do
    want to thank you for your extraordinary expertise. We benefit
    here, but most importantly people on the ground in Kenya and
    elsewhere are the greatest beneficiaries, so thank you for your
    leadership. Thank you for spending the better part of this
    afternoon conveying all of this wisdom to this subcommittee
    which we will use it and do our very best to see that you and
    your efforts are adequately resourced, particularly in these
    tough budget times. So thank you so very, very much and the
    hearing is adjourned.
        [Whereupon, at 4:15 p.m., the subcommittee was adjourned.]

                                A P P E N D I X

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         Material Submitted for the Hearing RecordNotice deg.

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      Material submitted for the record by Keith Jennings, Ph.D., senior
    associate and regional director for Southern and East Africa, National
                              Democratic Institute

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