Kenya elections whistleblower in flight

He could easily pass as one of the many junior and mid-career African students braving the winter cold and rushing through classes at a prestigious institute in The Netherlands. His calm demeanor and quiet exterior belie the inner turmoil and tension of a man forced to abandon his family, friends and career and flee to a foreign land in fear of his life. Still, his eyes have that earnest look that attests to his bravery and determination to speak out in the face of what he terms blatant injustice and outright violation of the will of a majority of his fellow countrymen and women.

The Institute that has for the last 50 years trained thousands of development-oriented professionals, scholars and practitioners from the developing world has been his temporary refuge for almost three months now since he fled Nairobi in early January. He is completing a three-month course on human rights, at the end of which he will have to look for a new place to call home. Such has been his rootless existence since he made that singly bold stand on the evening of 30 December 2007 to speak out on national and international television about the fiasco that was the tallying process at the Electoral Commission of Kenya. He immediately had to go into hiding, moving only in the cover of darkness or hidden in anonymous cars with tinted windows as he sought refuge. At the time, the entire country was gripped with tension and fear.

I first met Mr. Kirui in 1987 when we were both students at Kapsabet Boys High school in the then larger Nandi District to the west of Kenya’s Rift Valley. He was my senior in A level, quiet, unassuming and down to earth. We struck up a cordial though not particularly close friendship. We shared a common heritage, coming from a humble rural background. As first-born boys in typical African families, we both felt the weight of responsibility, not only to excel in school, but also to set a good example for those to follow. We were expected to assume responsibility for our younger siblings and were instilled with a strong sense of purpose, ambition and discipline. Little did I know that after completion of his A level studies; I would neither see nor hear from him again until more than ten years later.

Like many motivated Kenyan students unable to afford a more expensive and prestigious university education in Europe or America, Mr. Kirui turned east and enrolled in a law degree at Bangalore University in India in 1991. The defining moment in his life came when he met a member of the Indian state legislative assembly and an advocate. Mr. M. V. Rajashekaran became his mentor and introduced him to the world of legislative law and practice. Mr. Rajashekaran had a profound influence on Mr. Kirui’s career choice after graduation two years later in 1996. While working as an intern at Mr. Rajashekaran’s office, he was struck by how the Indian state legislatures were performing: “quite efficient and democratic, with high-quality staffing and facilities and good working conditions,” marvels Mr. Kirui.

It was then that he decided to focus on legislative work, as opposed to the traditional core legal training. Upon his return to Kenya in 1998, Mr. Kirui embarked on a journey that would see him rise quickly as a well-respected and accomplished parliamentary official. He became one of a handful of experts in the details of parliamentary rules and procedure working in Kenya today. While at the Kenya School of Law, he became interested in the research capacity of members of parliament and sought to find out whether parliament provided resources and research capability for MPs to do their work effectively. He then sought a research permit from the office of the president to study the Kenyan parliament.

This was an unusual request at the time, since no member of the public, not even former MPs, were allowed into the parliament’s library. The serious lacunae in research and law-making capacity soon became obvious to Mr. Kirui. He made it his life mission to seek every opportunity to assist in improving the quality of parliamentary work by providing expert support for members of parliament and parliamentary staff. In his determination, he decided to double as a parliamentary commentator for Kenya Times newspaper and, in the year 2000, started a parliamentary political talk show on Kenyan Broadcasting Corporation TV. “At the time it was very difficult to allow MPs to appear on shows on KBC,” Mr. Kirui admits.

“I convinced the minister who was then Hon. Joe Nyaga that it was possible to have a TV show with politicians coming in to talk about what’s going on in Parliament.” This was a significant historical moment in the country’s political process. The country was gearing itself for the decisive 2002 elections. Civil society involvement in the political process was at its peak, and Mr. Kirui’s passion for bridging the gap between parliamentary processes and the public found fertile ground. He started supporting civil society organisations and donor agencies involved in electoral, governance and, in particular, legislative issues. As a result, he worked with such organisations as the Friedrich-Ebert-Stiftung and USAID, among others. After the opposition victory in the 2002 elections and the subsequent cooption of hitherto critical sections of civil society in government, Mr. Kirui turned his attention to consulting for interest groups and stakeholders lobbying parliament on specific bills before the house.

“Many of them would like to understand the implications of the legislation, participate in the law making process and lobby to ensure their interests were protected,” Mr. Kirui admitted. As his involvement in parliamentary procedures deepened and his involvement with a cross-section of influential sections of society widened, he steadily gained respect from all interested parties in the parliamentary process. Mr. Kirui contributed in varying degrees to landmark bills that later became key pieces of legislation in Kenya, such as the Central Bank of Kenya Amendment Bill (Donde Bill), the Industrial Property Bill on issues relating to access to essential medicines and the Tobacco Control Bill. He also worked with the Association of Kenya Insurers and other stakeholders.

“Through all this, my experience was to ask, do we have sufficient capacity for the public, the common people to get to know what law is being enacted? Are they participating? I am a believer in public participation in law-making. I do not believe that people just assume that MPs, the elected representatives should carry out house processes without consultation or reference to the public,” he asserts.It was in recognition of his expert knowledge of parliamentary procedure, his dedication and unparalleled commitment to the legislative process that, in 2003, the Parliamentary Services Commission invited him to apply for a position as a fulltime member of staff. It was none less than Hon. Oloo Aringo, the architect of the PSC who extended the invitation.

Although at the time Mr. Kirui had just been appointed to a lucrative position as deputy country director for a USAID parliamentary assistance programme run by the State University of New York, he chose the less glamorous path to join the public service as a clerk of parliament. “I abandoned the USAID project and with it a very lucrative job, but I have never regretted my decision,” he states confidently. Owing to his extensive experience, determination and strong work ethic, he quickly rose through the ranks to become the first staff member in the history of parliament to be posted to the chamber before confirmation. While probation in the civil service takes two years, and promotion to the chamber, a process called ‘robing’ in parliament, takes up to ten years for other staff, Mr. Kirui was robed within a year.

It was his secondment to the Electoral Commission of Kenya as a tallying supervisor that set the stage that propelled Mr. Kirui to the centre of the intrigue, manipulation and mayhem that bedeviled the critical final steps of the electoral process in Kenya. As a tallying supervisor, Mr. Kirui was responsible for the vote tallying process for one of ten regions comprised of 21 constituencies. This involved supervising junior staff who were meant to be in direct contact with returning officers at the constituency level, to receive and tally poll results by phone, verify them via faxed copies of original documents and finally confirm them by receiving the actual physical copies of original documents (form 16) countersigned by presiding officers and polling agents at the polling stations before the results could be announced by the commission chairman.

What transpired however, according to Mr. Kirui was utter confusion, a breach of the laid down procedures, complete disregard of the need for verification and proper and accurate documentation of the results and what appeared to be a deliberate manipulation of the entire process. It now emerges that none of the tallying and data entry officials recruited by the Electoral Commission received adequate training if at all on how to handle the exercise. Mr. Kirui insists that the recruitment exercise continued to the very day of the election and at the very last minute, people were literally being recruited from the streets.

“They had school leavers from the streets joining the ECK tallying teams. I thought it was questionable, not because they didn’t know what to do, but because they came very late, totally untrained and unprepared. We were then as team leaders asked to train people, yet we didn’t receive any training ourselves.” The Independent Review Committee into the conduct of the elections, according to Mr. Kirui needs to focus in part on structural weaknesses in the ECK that led to such a high level of incompetence of those who were handling the tallying of the results. “The level of incompetence right from the junior officers picked from the streets and put to the job right away, seeing the forms and documents for the first time, without any training, to the highest officials and supervisors who seemed not to understand their roles and duties.”

He adds,” The lack of organisation and lack of training was not just a failure to plan; it was deliberate to create chaos and confusion so it could be easy to manipulate the process.”It was these glaring systemic weaknesses that allowed the process to be flawed, as well as deliberate manipulation of the tallying process that led Mr. Kirui to leave the ECK tallying centre and speak to the press just hours before the presidential results were announced and Mr. Kibaki sworn in as president. Knowing full well the repercussions of his actions, despite the real fear that it could well cost him his life, Mr. Kirui chose to go public.

“The reason I went public was because of what I saw in Rwanda. The consequence of denying and robbing the people of their basic democratic rights, against a situation where you have skeletons of thousands of people buried in one grave. At some stage, I saw the skeleton of a baby, almost 40cm, with diapers still on and the skull had a big hole in it…you ask yourself how and why that level of animal behaviour could happen. I saw our country sliding down that road and I knew I had to do something to prevent that slide, the certain and horrifying prospect of the consequence of a presidency being snatched from a winner. I could see that the country was already in a tense trance. I thought we were getting drunk, and I could see a slaughter and serious massacres 40 or so hours later.

It could have been worse.”In his zeal to try and forestall what he thought was a national catastrophe looming over the land, Mr. Kirui faced the press and made his now famous speech. “It mattered to me that my coming out would make a difference and I am convinced that it did. When I went to KICC to address the press, the situation was already tense; the paramilitary police GSU had surrounded the place. I was sure a bullet would go through my head any time. I believed my intervention would save the situation. I thought Mr. Kivuitu would announce that the elections are nullified, that he would order a recount, or that we would have another election in 12 months or so. I was convinced some action would be taken; little did I know that Mr. Kibaki was preparing to be sworn in at the same time. I thought I was acting at the nick of time.Instead, from then on, Mr. Kirui was a marked man on the run. I hadn’t seen or been in touch with him since the year 2000.

I had been living in Holland since 2001, but happened to be in Kenya at the time. Two days after his press appearance, Mr. Kirui called me in the dead of night. I could tell he was clearly shaken and scared. He confessed to needing any help he could get to leave the country asked if I had any contacts with any foreign embassy that might be willing to help. I made some phone calls and put him in touch with an embassy official I knew, and so begun his extraordinary flight through Tanzania to the Netherlands. It was not as easy to leave Nairobi. His two daughters aged ten and twelve were up country in the village visiting their grandparents.

His wife could not immediately leave with him as she had to fetch the girls from the village. He worried silently about leaving them behind, but knew he would be no use to them at home and dead; he had to go ahead and was comforted by the assurance that they would join him soon. According to him, many friends in the NGO sector and more than one foreign mission came to his rescue, first hiding him in an ambassadorial residence after another, then being driven in cars with tinted windows across town to record his statement and swear an affidavit before a commissioner for oaths and eventually planning an escape route.

By then, his contacts in the police and the National Security Intelligence Service had warned him that certain sections of the police were hunting him down and that his best hope was to leave the country. Some diplomats suggested leaving through Sudan, but the national airspace was under tight surveillance then and small aircraft flights from every single airstrip in the country were grounded. The only option was to leave by road. Uganda was at the time suspected to be supporting Mr. Kibaki. That left Tanzania as the least risky of the available options. What followed was a harrowing, eighteen-hour drive from Nairobi under the cover of darkness and disguise, through Namanga border, via Arusha, to Dar es Salaam.

A week after he went underground, he was finally able to breathe a little air of freedom, but sadly, not in his own country. His well-wishers in Kenya immediately organised an air ticket for him and, after being holed up in an embassy in Dar es Salaam, he was driven straight to Mwalimu Julius Nyerere International Airport, from which he took an overnight flight to relative safety in Amsterdam. When he landed at Schiphol airport, the director of the Institute that was to host him was ready to receive him. A place had been secured for him to enroll straight away as a student in a human rights certificate program.

The diplomatic community in The Hague gave him a warm welcome, especially those who had had any contact with or field experience in Kenya. Most of them were eager to hear his first-hand experiences. These discussions served to embolden the Dutch Foreign ministry’s and, by extension, the European Union’s strong policy position during the negotiation process that Kofi Annan mediated. At the time of this interview, Mr. Kirui was completing the final papers for his course and intended to leave the Netherlands shortly, bound for a new destination (which shall remain undisclosed for the sake of his safety and that of his family).

He still fears for his life and is not assured that he can be guaranteed adequate security in Kenya. His informants in the police force and NSIS maintain that his life is still in danger. Contrary to popular opinion, the opposition leadership was not involved at all in his flight and had no idea of his whereabouts, even weeks after his departure. According to him, “I wouldn’t rely on protection from politicians; I didn’t go public because of politicians. It was my conscience. Who would ensure my security in Nairobi? The government has no control over and has been alleged to lend support to Mungiki. Two members of parliament were killed like dogs in the streets, who am I to survive?”Asked about the witness protection act that was passed during his time as clerk at the national assembly, Mr. Kirui dismisses it as one of the weakest pieces of legislation ever passed by parliament, having been watered down by MPs, who, through their selfish and shortsighted considerations, failed the nation yet again.

The Independent Review Committee on the election debacle will thus have to do without his testimony, at least in person, unless they are able to arrange a videoconference, or accept a signed statement from Mr. Kirui. Asked about his future, Mr. Kirui says he will not depart from his career in legislative issues, but wants to continue doing rigorous research, publishing and building a critical body of knowledge that he thinks is needed in order to improve legislative processes in Africa, and particularly in Eastern Africa, including Kenya. That will be his contribution for the foreseeable future. For now, Kenya’s parliament will have to do without his skills and expertise at a time when perhaps it needs him.