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Cablegate: Update On Commission of Inquiry Into Post-Election

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FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 5713
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDS/AMEMBASSY ADDIS ABABA 0069
RUEHDR/AMEMBASSY DAR ES SALAAM 5959
RUEHDJ/AMEMBASSY DJIBOUTI 5253
RUEHKM/AMEMBASSY KAMPALA 2794
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RUEHLO/AMEMBASSY LONDON 2808
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RHMFIUU/CDR USCENTCOM MACDILL AFB FL
RHMFIUU/CJTF HOA

UNCLAS SECTION 01 OF 03 NAIROBI 001170

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: N/A
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: UPDATE ON COMMISSION OF INQUIRY INTO POST-ELECTION
VIOLENCE AND COMMISSION FOR TRUTH, JUSTICE, AND
RECONCILIATION

REF: NAIROBI 969

-------
Summary
-------

1. As a result of the Kofi Annan-led mediation efforts to
end Kenya's post-election crisis, Kenya's political leaders
agreed to form a Commission of Inquiry on Post-Election
Violence (Violence Commission) and a Truth, Justice, and
Reconciliation Commission (TJRC). The Violence Commission is
preparing to begin work; its Kenyan Chair and two
international Commissioners have been appointed and are
drafting rules of procedure and work plans. The TJRC has not
yet been formed. Enabling legislation for the TJRC has been
gazetted and should be debated in parliament soon. TJRC
commissioners have not been named. Civil society groups have
called for more transparency in the work of these commissions
and have criticized aspects of the TJRC draft legislation. A
third commission, the Independent Review Commission, has
already begun its work on a top-to-bottom review of the
flawed 2007 elections (reftel). A fourth commission on
constitutional reform is still in the discussion stage. We
will follow the work of these commissions and will engage
with political leaders when necessary to encourage
non-interference in their work and implementation of the
commissions' recommendations. End Summary.

--------------------------------------------- --
Commission of Inquiry on Post-Election Violence
--------------------------------------------- --

2. The Commission on Violence is a non-judicial body
composed of three Commissioners -- a Kenyan Chair and two
internationals who are either respected jurists or experts in
communal conflict. The Commission on Violence has begun
setting up shop and informally receiving evidence; we expect
it to begin formal operations in the near future. Its
mandate is for three months, with a possible one-month
extension. The Violence Commission plans to investigate
facts related to the acts of violence that followed the 2007
Presidential elections, including acts and omissions of state
security agencies. At the conclusion of its work, the
Violence Commission will prepare its report, which will
contain findings of fact and recommended measures to prevent
future violence as well as proposed redresses or legal
actions. The work of the Commission is expected to be
considered by the TJRC as it undertakes its investigations.

3. The Panel of Eminent African Personalities (the Panel),
in consultation with Party of National Unity (PNU) and Orange
Democratic Movement (ODM) negotiating teams, has named Kenyan
Appellate Judge Philip Waki as Chair. (Note: Waki had been
suspended from the bench due to allegations of corruption.
However, he fought the allegations and a tribunal reinstated
him. End Note.) The international commissioners appointed
are Pascal Kambale, a Congolese human rights lawyer currently
working with the Open Society Institute in New York, and
Gavin McFayden, a former assistant police commissioner of the
New Zealand national police. The team is currently
formulating its rules of procedure and work plan. It should
begin work by the end of May.

--------------------------------------------- ----
The Truth, Justice, and Reconciliation Commission
--------------------------------------------- ----

4. The TJRC must be established by an act of parliament,
which has yet to occur. Its mandate will be to investigate
human rights violations committed by the state, groups, or
individuals since Kenya's independence in December 1963.
These violations include politically-motivated violence,
community displacements, settlements, and evictions. The
TJRC may also investigate economic crimes -- such as
corruption and historical land injustices -- which have
contributed to conflict and violence in Kenya. While its
terms of reference limit the TJRC to investigating
post-independence events, it may look into pre-independence
events to understand root causes that may have led to

NAIROBI 00001170 002 OF 003


post-independence human rights violations.

5. The TJRC will have seven Commissioners (three
internationals and four Kenyans) with gender balance taken
into account in making appointments. The Kenyan
Commissioners will be chosen through a consultative process,
with public input. The appointment of international
commissioners will be made by the Panel of Eminent African
Personalities (the Panel), taking into account public input,
but subject to agreement of the PNU and ODM negotiating
teams.

6. The TJRC has a two-year mandate, after which it will make
recommendations to advance reconciliation as well as
institutional and other reforms. It may recommend
prosecutions for past acts. The TJRC will deliver its report
to the President and publish the report within 14 days of
delivery. Parliament also will debate the report.

7. The Attorney General's Office has prepared a TJRC Bill
and consulted with respected lawyers representing prominent
non-governmental organizations. Contacts involved in the
review were supportive of the draft generally, stating that
it reflected the spirit of the agreement. We hear from
parliamentary sources that the TJRC Bill will be gazetted on
May 9. At parliament, the bill will be considered by the
Legal Affairs Committee, which will also receive public input
on the bills and then send the Bill for debate to the entire
house.

--------------------------------
Civil Society Criticize Process
And Substance of Draft TJRC Bill
--------------------------------

8. Civil society organizations (CSOs) have criticized the
shortage of public consultations on the TJRC Bill. CSOs have
also criticized the substance of the Bill as drafted by the
AG's Office. There are concerns that the mandate of the TJRC
contained in the Bill is too broad and will prevent it from
completing its work within its two-year mandate. They have
criticized tight timelines for the selection of commissioners
and the inclusion of amnesty provisions which could be
interpreted to offer amnesty for perpetrators of crimes
against humanity or war crimes, in abrogation of Kenya's
international obligations. They also criticize that the
Minister of Justice is granted, along with the Treasury,
authority to "scrutinize and approve" the TJRC budget and
have input into the compensation for staff and commissioners.
They also object to the Implementation Committee being
formed by, and reporting to, the Minister of Justice. They
fear this expansive role could be used for political
purposes. Another major concern is the inclusion of a
reparations process administered by the TJRC, which they fear
would skew the mission of the TJRC to being largely about
reparations, to the detriment of truth-finding and
restorative justice.

--------------------------------
Constitutional Reform Commission
--------------------------------

9. The negotiating parties at the Annan-led mediation talks
also agreed to form a constitutional reform commission.
Currently, no steps have been taken to establish this
commission. The need for this commission is still being
debated. Strong sentiment from parliament -- which considers
constitution-making its bailiwick -- and the existence of
the African Union Secretariat, left behind by Kofi Annan to
handle the reform Agenda negotiated by the parties, may make
this commission redundant. We will continue to follow
developments.

-------------
The U.S. Role
-------------

10. We are working the United Nations, the European Union,
its member state missions and other like-minded missions to

NAIROBI 00001170 003 OF 003


closely follow the work of the commissions to help ensure
that they deliver a credible result. We chair or co-chair
donor committees focused on each of the commissions. We
should consider providing necessary technical/funding support
if and when needed. We have made clear to the coalition
government at the highest levels that we attach great
importance to the work of the commissions and to the carrying
out of the reform agenda (constitutional, electoral, land).

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

11. Kenya has clearly caught commission fever. It would be
premature to call this too much of a good thing, but that
possibility certainly bears watching. On the other hand, it
is indisputable that their is a mammoth amount of work to be
done to repair deep fissures within Kenyan society and
government, so perhaps there is a place for these
organizations. In any event, the standing up of these
commissions is moving forward. Critical issues remain, such
as the adoption of rules of procedure, evidence, work plans
and, in the case of the TJRC, the appointment of
commissioners. The resolution of these issues will determine
the transparency and effectiveness of the commissions.

12. Finally, we note that the mandates of the Commission on
Violence and the TJRC could at times be at odds with one
another, as their respective "retributive" and "restorative"
justice will almost certainly deter some potential witnesses.
Nevertheless, the commissions represent the interests (and
legitimate grievances) of different groups of Kenyans, and
neither can be ignored. It is important that these
Commissions break with prior practice -- commissions of
inquiry historically have resulted in little or no action in
this country -- and deliver on Kenyans' high expectations.
End Comment
RANNEBERGER

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