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Cablegate: Independent Review Commission Set to Begin Review

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UNCLAS SECTION 01 OF 02 NAIROBI 000869

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: INDEPENDENT REVIEW COMMISSION SET TO BEGIN REVIEW
OF 2007 ELECTIONS: ECK FEELING THE PRESSURE

REF: NAIROBI 792

-------
SUMMARY
-------

1. As part of their historic February 28 power-sharing deal,
the Party of National Unity (PNU) and Orange Democratic
Movement (ODM) agreed to form an Independent Review Committee
(IREC) to undertake a top-to-bottom review of Kenya's flawed
2007 elections. Commissioners and a Chair, South African
judge Johan Kriegler, have been selected and began work on
March 20. Quick action to form the IREC bodes well for
Kenya's efforts to deal seriously with the causes of the
recent crisis, but key issues remain to be resolved, such as
the rules of procedure and the level of transparency of
decision-making within the Committee. The resolution of
these will, in large measure, determine whether IREC can
fulfill the high expectations of the Kenyan public to get to
the bottom of the 2007 elections and deliver recommendations
for real change. Of more immediate concern, however, is
whether IREC will somehow force the resignation of the
discredited Electoral Commission of Kenya (ECK) before six
parliamentary bi-elections are to be held. End summary.

--------------------------------------------- ------
The Independent Review Committee - up and running
--------------------------------------------- ------

2. IREC is a mixed, non-judicial body comprised of seven
Commissioners - four Kenyans and three internationals. The
Chairman of IREC, Johan Kriegler, is a judge and former head
of the South African Electoral Commission. In that capacity,
he oversaw South Africa's first post-apartheid elections. He
later worked as an adviser to Sierra Leone's Electoral
Commission. PNU and ODM each nominated two of the Kenyan
commissioners. The parties agreed on Justice Imani Daudi
Aboud, a Tanzanian Judge and Horacio Boneo, an Argentine
electoral expert, to round out the commission. Kriegler
arrived in Nairobi on March 19. He and the other
Commissioners were sworn in by Kenya's Chief Justice on March
20.

3. IREC is tasked to undertake a comprehensive review of the
flawed 2007 elections. This includes identifying weaknesses
and inconsistencies in Kenya's electoral legislation, and
investigating all aspects of the ECK's performance (including
its structure, composition and management systems) during the
conduct of the 2007 elections. It will propose
recommendations on electoral reform, which are expected to
include constitutional, legislative, operational and
institutional measures. Although it has no power to punish
wrongdoing related to the 2007 elections, it can propose
accountability mechanisms for ECK Commissioners and staff
related to electoral malpractices. IREC is expected to
deliver its report to the Panel of Eminent African
Personalities within 3-6 months, with publication of the
report to follow within fourteen days of delivery. Under the
Annan-led mediation agreement, IREC's recommendations are to
be factored into long-term electoral, legal, and
constitutional reform expected to flow from Agenda point 4 of
the negotiations.

4. IREC is hiring investigators and counsel and beginning
work to decide its procedural and evidentiary rules. IREC
hearings are expected to be public, although the Commission
has the discretion to order private hearings if needed to
gather testimony or allay fears of reprisal for testimony
given. The Committee will be funded by the Government of
Kenya (GOK) and the Trust Fund for National Dialogue and
Reconciliation, which includes support from the U.S. and
other donor states.

----------------------
ECK FEELS THE PRESSURE
----------------------

5. As IREC starts up its operation, the ECK is under
increasing pressure. IREC has met with ECK officials to
gather preliminary information on ECK's organizational
structure and management systems. When its hearings begin,
IREC is expected to call many, if not all, of the ECK

NAIROBI 00000869 002 OF 002


Commissioners to testify regarding the elections, focusing on
the tallying of the presidential election results. In
increasingly strident tones, media and civil society also
have called for the entire ECK to resign. ECK has resisted
all such calls.

6. The ECK recently decamped to a five-star resort in
Mombasa to conduct an in-house review of its performance in
the election. This was widely interpreted as an attempt by
the ECK to get its story straight before Commissioners are
called to testify before IREC, according to our contacts.
Coincidentally, the National Civil Society Congress (NCSC),
an umbrella group for Kenyan civil society organizations, was
holding a conference in the same resort. When NCSC activists
learned that the ECK was in the same hotel, they stormed the
ECK gathering, demanding that the ECK Commissioners resign.
This caused a melee and police were called to intervene. In
the aftermath, ECK Chairman Samuel Kivuitu claimed that
important files went missing which would impact the
Commission's ability to present evidence to IREC. (NOTE: The
NCSC publicly ridiculed the disgraced ECK's expenditure of
taxpayer money on a five-star hotel -- an extravagance the
NCSC could only afford through all its hard-earned donor
funding. END NOTE.) Later during ECK's visit to Mombasa,
ordinary citizens heckled Kivuitu with demands for his
resignation as he left a restaurant. The media widely
covered these events, fanning already wide public resentment
toward the ECK.

7. In another attempt by the ECK to get its story straight,
the Secretary of the ECK on March 26 issued a memo ordering
all Commissioners to file reports explaining their role in
the tallying process. While the ECK presented this as an
effort to assist the ECK in making its submission to IREC,
ODM deputy leader Musalia Mudavadi stated ODM's opposition to
the move, calling it an attempt to conduct a parallel inquiry.

-------
COMMENT
-------

8. The quick stand-up of the IREC is an important step.
The public, media, and civil society have made increasingly
strident calls for the ECK's resignation due to ECK's role in
the flawed 2007 presidential elections (which sparked
violence causing 1,200 deaths and 500,000 displaced persons).
There are grave doubts whether the current ECK has the
credibility to conduct elections for the six Parliamentary
seats that remain vacant. Recently, the Speaker of
Parliament decided to delay issuing writs declaring the seats
vacant. Declaring the seats vacant would require
by-elections to be organized by the ECK within 90 days. The
expected public testimony of ECK Commissioners before the
IREC may determine whether the ECK in its current composition
is able to conduct the by-elections. End Comment.
RANNEBERGER

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