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Cablegate: Gok Prepares to Oust Electoral Commission

VZCZCXRO2697
PP RUEHROV
DE RUEHNR #2747/01 3451238
ZNR UUUUU ZZH
P 101238Z DEC 08
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 7845
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6215
RUEHDJ/AMEMBASSY DJIBOUTI 5469
RHMFIUU/CJTF HOA

UNCLAS SECTION 01 OF 02 NAIROBI 002747

SIPDIS

DEPARTMENT FOR AF/E, LONDON, PARIS FOR AFRICA WATCHERS

E.O. 12958: N/A
TAGS: PREL PGOV KDEM KE
SUBJECT: GOK PREPARES TO OUST ELECTORAL COMMISSION

REF: A. A. NAIROBI 2221
B. B. NAIROBI 869
C. C. NAIROBI 792

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

1. On November 27, the Cabinet approved a draft
constitutional amendment which will disband the Electoral
Commission of Kenya (ECK) and remove all 22 current ECK
commissioners. If, as expected, Parliament approves the
measure before it recesses on December 18, the ECK will be
replaced by an Interim Electoral Commission tasked with
preparing the groundwork for a referendum on a new
constitution that will be held in approximately one year.
Passage of the amendment will be a welcome first step toward
electoral reform and, if competent professionals are chosen,
will reduce the possibility that the constitutional
referendum will prove a flashpoint for renewed violence. We
stand ready to consider providing assistance to the new body.
We will follow progress and weigh in, where necessary, to
press for further electoral reforms. End Summary.

---------------
OUSTING THE ECK
---------------

2. Pressure to disband the Electoral Commission of Kenya
(ECK) has been building since the December 2007 general
elections, when the ECK pronounced the Party of National
Unity (PNU) presidential candidate, President Mwai Kibaki,
had been re-elected under controversial circumstances. The
announcement spurred a post-election crisis when supporters
of the opposition Orange Democratic Movement (ODM) refused to
recognize the result. The crisis was resolved when the PNU
and ODM agreed to form a Grand Coalition government in late
February 2008. As part of the power-sharing deal that ended
the crisis, the PNU and ODM agreed to form a commission
(known as the Kriegler Commission) to evaluate he integrity
of the 2007 elections and to propose reforms to Kenya's
electoral framework (ref c). The parties also agreed to
write a new constitution, a process which is expected to last
approximately one year (ref c).

3. The Kriegler Commission presented its report to President
Kibaki in September 2008 (ref a). The report found no
evidence that the presidential elections had been rigged, but
it roundly criticized the ECK for having failed to institute
safeguards to protect the integrity of the elections.
According to the report the election results at all levels
were "irretrievably polluted" due to ECK incompetence. The
Kriegler Commission recommended that the GOK disband the ECK
and create a new electoral body.

4. Upon receiving the Kriegler report, President Kibaki and
Prime Minister Raila Odinga formed a Cabinet sub-committee to
create an implementation plan. However, efforts to scrap the
ECK and remove its commissioners were complicated by the fact
that ECK commissioners enjoy security of tenure, which is
embedded in the constitution, and can only be removed for
cause. On November 27, the Cabinet approved a Constitutional
Amendment Bill (the Amendment) which, if passed by
Parliament, will disband the ECK and remove all 22 current
ECK commissioners from office. The Amendment will replace
the ECK with an Interim Electoral Commission (IEC), tasked
with administering the national referendum on a new
constitution, as called for in the National Accord and
Reconciliation Act of 2008. The IEC is also tasked with
updating and correcting the voters register, which the
Kriegler report criticized for being inaccurate and
contributing to voter fraud. To avoid politicization of the
new body, IEC commissioners will be appointed after a public
application process which Parliament will oversee. Under the
Amendment, the IEC will operate for no more than 15 months or
until it organizes the referendum on a new constitution,
whichever comes first. Parliament is expected to debate the
Amendment before it adjourns on December 18.

5. COMMENT: We expect Parliament to adopt the Amendment
before it adjourns on December 18. The transparent selection
procedure for IEC commissioners in the Amendment is an
important step towards creating public confidence in the
body. The success of the IEC will, of course, be determined
by the caliber of appointees, but passage of the Amendment
will represent a welcome first step toward long-overdue
reform of Kenya's electoral framework. We stand ready to
consider providing assistance to the IEC. We are continuing

NAIROBI 00002747 002 OF 002


to press hard for action. End Comment.
RANNEBERGER

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