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Cablegate: President, Pm Sign Pact to Form Post-Election

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FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8046
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6274
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UNCLAS SECTION 01 OF 03 NAIROBI 002865

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM KDEM KE
SUBJECT: PRESIDENT, PM SIGN PACT TO FORM POST-ELECTION
VIOLENCE TRIBUNAL

REF: A. NAIROBI 2551
B. NAIROBI 2401
C. NAIROBI 1838
D. NAIROBI 1170
E. NAIROBI 2762

SUMMARY
-------

1. President Mwai Kibaki and Prime Minister Raila Odinga
signed on December 17 an agreement to implement the
recommendations of the Commission of Inquiry into
Post-Election Violence (CIPEV), also known as the Waki
Commission (Reftels). The agreement tasks a Cabinet
sub-committee to draft legislation to establish a Special
Tribunal expected to try at least ten high-level politicians
and businessmen whom the Waki Commission suspect organized
and/or financed post-election violence. The agreement
further holds that any public official charged by the Special
Tribunal will be suspended until the case is resolved and
that those convicted will be barred from elective or other
public office. Kibaki and Odinga also agreed to undertake
sweeping police reforms, including the establishment of a
independent civilian oversight authority for police. Signing
the agreement meets the first of several benchmarks set by
the Waki Commission. Parliament must now enact legislation
establishing the Special Tribunal by January 31 or risk that
the International Criminal Court will assert jurisdiction.
Kofi Annan, who mediated the agreement that ended Kenya's
post-election crisis and which established the Waki
Commission, issued a statement welcoming the agreement (See
text para. 5). The statement also stressed that the
Government should meet the original implementation deadlines
in the Waki report. The Ambassador had urged the need for
rapid action in his December 9 reform agenda speech (Ref D)
and has also welcomed the action taken. The legislation is
largely ready and we expect President Kibaki will recall
Parliament early from its recess to beat the deadline. END
SUMMARY

The Waki Commission
-------------------

2. The Waki Commission was appointed as part of the Kofi
Annan-led mediation process which resolved Kenya's
post-election crisis. Its mandate was to investigate the
causes and nature of the post-election violence, to recommend
prosecutions where justified by the evidence, and to suggest
reforms to help prevent future instances of election violence
Ref D). It began work in June. After three months of
testimony from state security personnel, politicians,
individuals, and non-governmental organizations, the Waki
Commission concluded that some post-election violence was
planned, while other acts were a spontaneous reaction to the
belief on the part of Odinga supporters that the presidential
election had been stolen. The Waki Commission found
sufficient evidence to develop a list of ten suspected
high-level organizers and financiers of post-election
violence, but did not release the names of these suspects
(Ref B). It proposed a Special Tribunal be formed to
investigate and try these suspects. The report also
concluded that planning for, and reaction to, post-election
violence by Kenya's police services was inadequate. It
condemned police forces for the frequent use of excessive
force to quell post-election violence. The Waki Commission
recommended significant reform to the Kenya Police Service
and Administration Police (Ref B).

3. The Waki Commission, in conjunction with the
International Criminal Court (ICC), created a strategy to
ensure that its recommendations would be implemented. This
strategy called for the Kenyan Government and Parliament to
meet tight deadlines for establishing the Special Tribunal.
The key deadlines were that President Kibaki and Prime
Minister Odinga had to sign an agreement to implement the
Waki Commission's recommendations within 60 days of receiving
the report. Subsequently, legislation establishing the
Special Tribunal must be enacted within 45 days, with a
further 30 days given to make the Special Tribunal
operational. Failure to meet any of these deadlines would
result Annan recommending that the ICC initiate
investigations of those suspected by the Waki Commission.
Deadlines related to police reform were much less specific
and do not have a self-implementing mechanism.

The Agreement

NAIROBI 00002865 002 OF 003


-------------

4. On December 17 President Kibaki and Prime Minister
Odinga signed an agreement in principle to implement the
report's recommendations, just beating the 60-day deadline.
The agreement assented to the formation of the Special
Tribunal and tasked a Cabinet subcommittee with drafting
legislation to establish the tribunal. It further holds that
any public official charged by the tribunal will be suspended
until the case is resolved and that those convicted by the
Special Tribunal will be barred from holding elective or
appointed public office. Kibaki and Odinga also agreed to
undertake major police reforms, including the establishment
of a independent civilian oversight authority for police.

Kofi Annan Welcomes
The Agreement
-------------------

5. On December 19, Kofi Annan issued the following statement
welcoming the agreement. To follow is a text of his
statement.

Begin text:

I am pleased that President Mwai Kibaki and Prime Minister
Raila Odinga have signed an agreement for the implementation
of the recommendations of the Commission of Inquiry into
Post-Election Violence (CIPEV). The implementation of
CIPEV's proposals will go a long way towards ending the
culture of impunity and spearheading much-needed
institutional reforms in the country. I note that the
Parties to the agreement will now prepare and submit to the
National Assembly a draft bill for the establishment of the
Special Tribunal for Kenya. I trust that the bill will
reflect the spirit of CIPEV's proposals and incorporate all
its key provisions. I urge Kenya's leaders to redouble their
efforts to implement the CIPEV recommendations and to respect
the suggested timeline for action.

Equally important is continued progress on electoral reform.
In this regard, I am pleased that the National Assembly has
passed the Constitution of Kenya Amendment Bill, 2008,
setting the stage for the implementation of the crucial
reforms recommended by the Independent Review Commission on
the 2007 elections. Moving forward on the reform agenda is
imperative for building a more stable and democratic Kenya.

End text.

Next Steps
----------

6. The next deadline is that Parliament must pass
legislation establishing the Special Tribunal on or before
January 31, 2009. Parliament adjourned for holiday recess on
December 18. It would normally resume in March 2009.
However, President Kibaki is likely to recall Parliament in
late January to debate and pass legislation before the
deadline expires.

7. Both Kibaki and Odinga have exerted strong leadership on
their followers to implement the Waki Report. Their
leadership, and the possibility that the ICC might assume
jurisdiction, has forged a consensus to implement the Waki
Report. The Cabinet subcommittee mentioned in the agreement
was formed in November and, chaired by Deputy Prime Minister
Musalia Mudavadi, has completed its implementation plan. The
consensus reached accepts international participation in the
trial and appeals court, but Kenyans would act as chief
judges in both. Regarding the selection process, the
government position is that President Kibaki would make
appointments of Kenyans judges in consultation with the Prime
Minister and the Chief Justice of Kenya. International
appointments and the appointment of the Kenyan deputy
prosecutor would be made by President Kibaki on the
recommendation of the African Union Panel of Eminent Persons,
an ad hoc body headed by Kofi Annan.

8. Kibaki and Odinga had hoped that Cabinet would adopt the
plan and that Parliament would pass the legislation before it
adjourned last week. However, these plans were delayed by
parliamentary wrangling over a constitutional amendment to
disband the Electoral Commission of Kenya, which prevented
Cabinet from considering the plan.


NAIROBI 00002865 003 OF 003


POLICE REFORM
-------------

9. The agreement also agrees in principle to implement the
Waki Report's implementation on police reform. This includes
a top-to-bottom review of tactics, weapons, and use-of-force
doctrine of Kenya's police forces, as well as establishment
of an independent oversight authority which would be
empowered to take public complaints about police behavior and
to discipline police officers. This is a massive task and its
implementation is not tied to a fixed timeline.


COMMENT
-------

10. The signing of the agreement represents another positive
step in implementation of the reform agenda. It appears that
much of the groundwork to establish the Special Tribunal has
been laid. Annan has blessed the agreement and his call for
the parties to respect the timeline for implementation of the
Waki Report's recommendations sends a clear signal that Kenya
will not, as many local politicians hoped, be allowed to
delay implementation. We expect Kibaki to reconvene
Parliament in mid-January to debate the legislation. The
Ambassador, in his private meetings and public comments over
the past months (Ref E), has strongly urged the Grand
Coalition government to take action as well as expressed
confidence they would fully implement the Waki Commission
recommendations. We will continue to stress the importance
of establishing the Special Tribunal and of reforming Kenya's
police forces at the highest level of government. End
Comment.


RANNEBERGER

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