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Cablegate: Kenya's Electoral Crisis: Kofi Annan Press

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UNCLAS SECTION 01 OF 04 NAIROBI 000496

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SUBJECT: KENYA'S ELECTORAL CRISIS: KOFI ANNAN PRESS
CONFERENCE ANNOUNCES INDEPENDENT REVIEW COMMISSION

1. At a press conference held on February 15, Kofi Annan,
as expected, put a positive spin on the negotiations.
However the agreement signed restates progress made to
date, but makes clear that there is no real progress on the
core issue of power-sharing.

2. To follow is the text of an agreement signed by Party
of National Unity (PNU) and Orange Democratic Movement
(ODM) negotiating teams on February 14th. Begin text.

Kenya National Dialogue and Reconciliation
Mediated by H.E. Kofi Annan and the Panel of Eminent
African Personalities
14 February 2008

Agenda Item Three: How to Resolve the Political Crisis

I. Preamble:

Reaffirming the Goal of the National Dialogue and
Reconciliation:

To ensure that the National Dialogue and Reconciliation is
carried out in a continuous and sustained manner towards
resolving the political crisis arising from the disputed
presidential electoral results as well as the ensuing
violence in Kenya, in line with the agreement between His
Excellency Mwai Kibaki and Honourable Raila Odinga, as
publicly announced on 24th January and reaffirmed on 29th
January 2008 at County Hall in Nairobi.

The final goal of the National Dialogue and Reconciliation
is to achieve sustainable peace, stability and justice in
Kenya through the rule of law and respect for human rights.

Recognising under Agenda Item Three that, in large measure,
the current crisis revolves around the issues of power and
the functioning of state institutions, and also recognizing
that its resolution may require adjustments to the current
constitutional legal and institutional frameworks, the
parties negotiated and agreed on a solution towards
resolving the political crisis arising from the disputed
presidential electoral results as well as the ensuing
violence in Kenya.

II. Regarding the disputed Presidential electoral results,
we examined the following options:

a) Complete Re-count of the Presidential Elections.

We agreed that any re-count, to be considered credible in
the eyes of the Kenyan people, would need to be nation-
wide, involving a ballot by ballot scrutiny of all of the
more than 11,000,000 ballots cast on December 27th. We
agreed that all ballots and electoral materials would have
be made available at counting centres across the country
before announcing a re-count. A re-count would need to be
conducted under the full scrutiny of trained observers and
party agents, who would have the right to scrutinize the
counting and verify each and every ballot.

We agreed that a re-count would need to be overseen by a
specially appointed independent body that enjoys the trust
and broad support of all Kenyans.

We considered the timeline for a possible re-count. We
agreed that the preparatory work required to make a re-
count credible in the eyes of the Kenyan people and in
keeping with international best practices could take up to
three months.

We were concerned that a delay of several months could
significantly increase existing tensions and delay
resolution of the current crisis, and we recognize that the
result of a re-count might not further Kenya unity, and we
therefore decided to review other options.

b) Re-tally


NAIROBI 00000496 002 OF 004


We agreed that any re-tally, to be considered credible in
the eyes of the Kenyan people, would need to be nation-
wide, involving full scrutiny and re-tally of results
sheets from all of the more than 27,500 polling station
tally sheets and 210 constituency tally sheets. We agreed
that all forms would have to be made available across the
country before announcing a re-tally. A re-tally would
need to be conducted under the full scrutiny of trained
observers and party agents, who would have the right to
scrutinize the conduct of the process and the validity of
each tally sheet, and would need to be overseen by a
specially appointed independent body that enjoys the trust
and broad support of all Kenyans.

While we agreed that a re-tally could successfully identify
problems or irregularities in the tally sheets, a re-tally
could not however identify the correct result in those
stations or constituencies where problems or irregularities
were identified.

For these reasons stated above, we decided to review other
options.

c) Re-run of Presidential Elections

We were not in agreement on the need for a re-run of the
Presidential elections.

We agreed however that, to safeguard the trust and
confidence of the Kenyan people in the democratic process,
the next election should take place only after electoral
reforms, including but not limited to the reform of the
Electoral Commission of Kenya, finalization of the work of
the Independent Review Committee (see below), updating of
the Voters' List, establishment and improvement of dispute
resolution mechanisms and effecting measures to ensure
enfranchisement of Internally Displaced Persons and
refugees have been implemented.

We considered the timeline for these reforms, which would
be essential to make the process credible in the eyes of
the Kenya people, and in line with international best
practices, would be substantial and would take at least one
year.

We recognized that Kenyans could not wait that long for a
resolution of the crisis, and we therefore decided to
review other options.

d) Judicial Process

We agreed that a judicial process was no longer an option
as the legal time limit had expired, and we therefore
decided to review other options.

e) Forensic Audit

We considered a forensic audit of the electoral process.
We agreed that an audit would have the advantage of
investigating and making findings regarding the conduct of
the 2007 election. We agreed that an audit will not reduce
tension and violence and will not result in a solution to
the crisis, and that the legal basis for such an audit was
unclear.

We further agreed that the functions of a forensic audit
would be best undertaken by an Independent Review Committee
(see below).

f) Independent Review Committee

We agree to establish an Independent Review Committee that
would be mandated to investigate all aspects of the 2007
Presidential Election and would make findings and
recommendations to improve the electoral process.

The Committee will be a non-judicial body made up of Kenyan
and non-Kenyan recognized electoral experts of the highest
professional standing and personal integrity.

NAIROBI 00000496 003 OF 004

The Committee will submit its report within 3-6 months and
it should be published within 14 days of submission. The
Committee should start its work not later than 15 March
2008.

The findings of the Independent Review Committee must be
factored into the comprehensive electoral reforms that are
envisaged.

III. Regarding the need for a political settlement to
resolve the current crisis, we agree on the following
points:

We recognize that there is a serious crisis in the country,
we agree a political settlement is necessary to promote
national reconciliation and unity.

We also agree that such a political settlement must be one
that reconciles and heals the nation and reflects the best
interests of all Kenyans. A political settlement is
necessary to manage a broad reform agenda and other
mechanisms that will address the root causes of the crisis.

Such reforms and mechanisms will comprise, but are not
limited to, the following:

-Comprehensive Constitutional reforms;
-Comprehensive electoral reform - of the electoral laws,
the electoral commission and dispute resolution mechanisms;
-A truth, justice and reconciliation commission;
-Identification and prosecution of perpetrators of
violence;
-Respect for human rights;
-Parliamentary reform;
-Police reform;
-Legal and Judicial reforms;
-Commitment to a shared national agenda in Parliament for
these reforms;
-Other legislative, structural, political and economic
reforms as needed.

We have only one outstanding issue under this Agenda Item,
the governance structure, which is being actively
discussed. Several options have emerged and the parties
are going to consult their principals and leadership on
these options and will revert to the Chair shortly.

We also agree that the issues in Agenda Item Four are
fundamental to the root causes of the crisis, and are
closely linked with Agenda Item Three. The implementation
of the following reforms should commence urgently in
concert with reforms of Agenda Item Three. However, these
processes may continue beyond the timeline of the next
election.

-Consolidating national cohesion and unity;
-Land reform;
-Tackling poverty and inequity, as well as combating
regional development imbalances, particularly promoting
equal access to opportunity;
-Tackling unemployment, particularly among the youth;
-Reform of the Public Service;
-Strengthening of anti-corruption laws/public
accountability mechanisms;
-Reform of Public Finance and Revenue Management Systems
and Institutions;
-Addressing issues of accountability and transparency.

We recognize that this settlement is not about sharing of
political positions but about addressing the fundamental
root causes of recurrent conflict, and we reaffirm our
commitment to address the issues within Agenda Item Four
expeditiously and comprehensively.

Milestones and benchmarks for the implementation of the
reform agenda will have to be defined.

Signed on this day, 14 February, 2008

NAIROBI 00000496 004 OF 004


On behalf of Government/PNU


Hon. Martha Karua
Hon. Sam Ongeri
Hon. Mutula Kilonzo
Hon. Moses Wetang'ula

On Behalf of ODM
Hon. Musalia Mudavadi
Hon. William Ruto
Hon. Sally Kosgei
Hon. James Orengo

Witnessed by:

For the Panel of Eminent African Personalities

H.E. Kofi A. Annan
Chairperson
End Text.
RANNEBERGER

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