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Cablegate: Post-Election Violence Commission Report:

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PP RUEHROV
DE RUEHNR #2551/01 3091409
ZNY CCCCC ZZH
P 041409Z NOV 08
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 7531
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDS/AMEMBASSY ADDIS ABABA 0295
RUEHDR/AMEMBASSY DAR ES SALAAM 6150
RUEHKM/AMEMBASSY KAMPALA 3023
RUEHKH/AMEMBASSY KHARTOUM 2205
RUEHLO/AMEMBASSY LONDON 2954
RUEHFR/AMEMBASSY PARIS 2848
RHMFISS/CDR USCENTCOM MACDILL AFB FL
RHMFISS/CJTF HOA

C O N F I D E N T I A L SECTION 01 OF 04 NAIROBI 002551

SIPDIS

E.O. 12958: DECL: 10/29/2018
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: POST-ELECTION VIOLENCE COMMISSION REPORT:
POLITICIANS DIVIDED OVER IMPLEMENTATION

REF: A. NAIROBI 2401
B. NAIROBI 2366
C. NAIROBI 1838 AND OTHERS

Classified By: Ambassador Michael Ranneberger for reasons 1.4 (B and D)

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

1. (U) Two weeks after release of the Commission of Inquiry
into Post-Election Violence (CIPEV) report (refs A and B),
Kenya's political leaders continue to publicly grapple with
fallout. Of particular contention is whether to implement
the report's recommendations for a special tribunal to try
high-level organizers of post-election violence. President
Mwai Kibaki and Prime Minister Raila Odinga have consistently
called for implementation of the report. Kibaki's Party of
National Unity (PNU) has yet to take a position on the
report, though indications are that there is serious
resistance.

2. (U) On October 30, the Parliamentary Group of Odinga's
Orange Democratic Movement's (ODM) rejected the report. 75
of 102 ODM MPs attended the meeting and concluded that it
contains "incurable errors", creating a serious obstacle to
passage of the report in parliament. This opens the
possibility of a challenge to Odinga's leadership or split in
ODM. The ODM backlash is led by Rift Valley MPs, while
Central Kenya MPs are hesitant to support Kibaki's call for
implementation of the report. Media speculation about the
names of the ten suspects mentioned (but not named) in the
report is rife. High-level politicians from both sides of
the Grand Coalition government are presumed to be among the
ten, including key political allies of Kibaki and Odinga,
such as Deputy Prime Minister Uhuru Kenyatta (PNU) and
Agriculture Minister William Ruto (ODM); each has issued
defensive statements challenging the sufficiency of evidence
linking them to violence.

3. (U) Kibaki and Odinga appear willing to push the issue
forward despite the risk it poses to these allies; a Cabinet
retreat is planned to try to find common ground on the
report. Even if Cabinet adopts the report, PNU will need
time to get its MPs to support implementation, while ODM will
need to restart discussions after a large majority of its MPs
rejected the report. To bring MPs along, Kibaki and Odinga
will need to compromise; opponents of implementation will try
to dilute the independence of the proposed special
tribunal. Agreement is likely to be found if only to avoid
the prospect that the International Criminal Court asserts
jurisdiction over Kenyans. Despite the challenges, Odinga
told the Ambassador on October 27 that he is confident that
the report will be implemented. We will continue to push for
implementation through a Kenyan mechanism, as called for in
the CIPEV report to assure accountability in line with
Assistant Secretary Frazer's public statement of October 29.
Clear statements by the U.S. and Annan on the need to carry
out fundamental reforms and end impunity are playing a
catalytic role to mobilize civil society, the private sector,
and media. End Summary.

---------------------
Implementation Issues
---------------------

4. (U) Since the Commission of Inquiry into Post-election
Violence (CIPEV - also known as the Waki Commission) released
its report on October 15, Kenyan politics has been dominated
by discussion of the report's conclusions and its political
and legal implications. The report called for sweeping
reform of the police services and the establishment of a
special tribunal with strong international participation to
try high-level organizers and financiers of post-election
violence (ref a). Kenya's political leaders have a long
history of inaction on recommendations of previous
commissions of inquiry. However, their hand has been forced
by the Waki Commission's decision to give Kofi Annan the
names of ten high-level organizers of post-election violence
for referral to the International Criminal Court (ICC) if
Kenya fails to establish the special tribunal. CIPEV
Chairman, Justice Philip Waki, has publicly stated that the
names will be submitted to the ICC Prosecutor if no action is

NAIROBI 00002551 002 OF 004


taken by February 28, 2009. With Kenya now facing a
deadline, debate is raging is whether or not to implement the
report. Kenya's political leaders are divided on the degree
and manner of implementation of the CIPEV report.

-------------------
Frantic Speculation
-------------------

5. (SBU) The Kenyan media has been frantically speculating
about which high-level figures are among the ten suspects
mentioned (but not named) in the CIPEV report. Some
high-level political figures who have been subject to
speculation as possible indictees are:

-- William Ruto, Minister of Agriculture, Orange
Democratic Movement (ODM)
-- Uhuru Kenyatta, Deputy PM, Minister of Trade Party
of National Unity (PNU)
-- George Thuo, MP Juju, PNU Parliamentary Whip
-- Zakayo Kipkemoi Cheruiyot, MP Kuresoi (ODM)
-- Isaac Kiprono Ruto, MP Chepalungu (ODM)
-- Franklin Bett, MP Buret (ODM)
-- Cyrus Jirongo, MP Lugari (Kaddu - not affliated
with either PNU or ODM)
-- Fred Kapondi, MP Mt. Elgon (ODM)
-- Kabando wa Kabando, MP Mt. Mukurweini (PNU)
-- Simon Nyachae, ex-MP, FORD-K (PNU-affiliated)
-- Ruben Ndolo, ex-MP, ODM

6. (SBU) William Ruto is widely suspected of being a key
organizer of post-election violence in Rift Valley Province,
as are Cheruiyot, Isaac Ruto, and Franklin Bett. The PNU
figures on the list have been implicated as having either
planned, supplied, or provided transport to members of the
ethnic Kikuyu Mungiki criminal organization to execute
revenge attacks against non-Kikuyu in Naivasha and Nakuru in
mid-January 2008. The big fish in this equation, William
Ruto and Uhuru Kenyatta, have had different reactions to the
speculation. While Ruto has sought to call into question the
credibility of the report by calling it a collection of
hearsay and not worth the paper it is written on. He
initially also stated that he is not afraid to go before a
tribunal to clear his name. Uhuru Kenyatta has been even
more defensive and strident in trashing the report. PNU Whip
George Thuo has proclaimed his innocence, but accepts that
the report should be implemented.

----------------------------
Call for Full Implementation
----------------------------

7. (U) President Kibaki and Prime Minister Odinga have
consistently called for the full implementation of the CIPEV
report. Initially, they planned to table the CIPEV report at
a Cabinet meeting set for October 30. However, this was
postponed because President Kibaki opened the IGAD summit
taking place in Nairobi that day. Kibaki and Odinga have
planned a Cabinet retreat, at which the CIPEV report will be
discussed. We do not expect this retreat to result in
Cabinet adoption of the report, but it shows that Kibaki and
Odinga are moving the issue forward. We understand that the
Cabinet will debate the report at its next scheduled meeting
on November 13.

--------------------------
Will their parties follow?
--------------------------

8. (U) Kibaki's Party of National Unity (PNU) has not yet
taken a firm stand on the CIPEV report. However, indications
are that Odinga will have a hard time bringing his Orange
Democratic Movement (ODM) to support his call for full
implementation of the report. On October 30, the ODM
Parliamentary group rejected the CIPEV report.

9. (C) PNU has not yet come to a unified position on
implementation. Some key figures, such as Minister of Justice
Martha Karua, call for full implementation, while others have
taken a more cautious approach. PNU Central Province
coordinator (and Kinangop MP) David Ngugi told poloff that
PNU regional leaders agreed that the report should be
implemented, but that it must be handled cautiously because

NAIROBI 00002551 003 OF 004


of the inflammatory nature of the charges likely to be
leveled against Kikuyu leaders. (Comment: Many Kikuyus feel
that Kikuyu leaders implicated in post-election violence were
engaging in self-defense and should not be equated with Rift
Valley organizers, who engaged in unprovoked violence. End
Comment).

10. (C) Ngugi also noted that PNU feels obliged to protect
Uhuru Kenyatta, who many see as the next leader of the GEMA
(the ethnic Kikuyu, Embu, and Meru) political grouping and a
future president of Kenya. A meeting of the GEMA-dominated
Central Kenya Parliamentary (CPK) group called by Uhuru
Kenyatta and the Minister of Energy, Kiraitu Murungi,
criticized
the Waki Report for conducting a partial investigation It
concluded that the Report must be amended for parliament to
approve it. Kenyatta issued a public statement opposing the
full implementation of the CIPEV report.

11. (U) Those calling for a go-slow approach in both ODM and
PNU accuse those seeking full implementation of the report as
attempting to settle political scores against rivals who are
potentially implicated in post-election violence. There may
be some element of truth in these charges -- certainly
Martha Karua's 2012 presidential bid would be helped if Uhuru
Kenyatta were to face trial. Likewise, Odinga (and Mudavadi)
would benefit from a potential trial of William Ruto -- a
potential rival whose future would be severely
diminished. But it stretches the truth to suggest that
support for implementation is solely motivated by these
short-term political considerations. Kibaki, in his last
term, does not need to worry about future political rivals.
He and Odinga seem to be motivated by the need to address
post-election violence to move the country forward. For her
part, Martha Karua has been a proponent of ending Kenya's
culture of impunity since her days leading the fight for
multi-party democracy in the 1990s.

----------------------
Public sentiment mixed
----------------------

11. (U) Many in Kenyan society have emphasized the need for
a forward-looking response to the crisis, focusing on
restorative, not retributive, justice. They stress the need
to complete Kenya's healing by using the reform processes
laid out in Agenda Point 4 of the National Accord and
Reconciliation Agreement to prevent a recurrence of violence.
There is, however, a growing chorus urging implementation.
This is evident in prominent media editorials and commentary,
statements by religious groups, among others. Kenyan human
rights and governance organizations support full
implementation of the report to bring justice for the
victims, but also see establishment of a special tribunal as
a key step towards breaking the culture of impunity that
remains largely undiminished among Kenya's elite. Statements
by Assistant Secretary Frazer, the Ambassador, and Kofi Annan
have played an important role to energize these groups - who
were also key in resolving the post-election crisis.

-------
Comment
-------

12. (U) The ODM Parliamentary Group's rejection of the
report, while certainly serious, does not necessarily mean
the end of the line for the report. It will, however, force
Odinga to seriously reevaluate his position and make him more
inclined to seek compromise to regain his party's
support on the issue. Kibaki, too, must work to get his
supporters to agree on a way forward. We will urge Kenya's
leaders to implement a Kenyan solution to hold organizers of
post-election violence accountable.

13. (U) The threat of Kenyans being tried by the ICC is
powerful leverage to influence Kenya's leaders to implement a
mechanism to hold accountable alleged organizers of
post-election violence, even if they vary from the report's
special tribunal proposal. Those opposed to establishing a
special tribunal are likely to try to dilute the tribunal's
independence, and will use nationalist arguments to remove
the strong international presence proposed for the tribunal's
trial and investigative branches. Their goal will be to

NAIROBI 00002551 004 OF 004


create a body more acceptable to Kenyan nationalist
sensibilities, but which might also allow high-powered
suspects to feel they have a better chance to manipulate the
process and beat charges. End Comment
RANNEBERGER

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