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Cablegate: Kenya Elections: Electoral Commission Chairman

VZCZCXYZ0000
PP RUEHWEB

DE RUEHNR #4097/01 2890849
ZNR UUUUU ZZH
P 160849Z OCT 07
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 2938
INFO RUEHAR/AMEMBASSY ACCRA 0918
RUEHDS/AMEMBASSY ADDIS ABABA 9595
RUEHDR/AMEMBASSY DAR ES SALAAM 5506
RUEHDJ/AMEMBASSY DJIBOUTI 4880
RUEHKM/AMEMBASSY KAMPALA 2320
RUEHLO/AMEMBASSY LONDON 2425
RUEHNE/AMEMBASSY NEW DELHI 0287
RUEHFR/AMEMBASSY PARIS 2353
RUEHSA/AMEMBASSY PRETORIA 8998

UNCLAS NAIROBI 004097

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PREL KDEM PGOV KE
SUBJECT: KENYA ELECTIONS: ELECTORAL COMMISSION CHAIRMAN
SPEAKS OUT

REF: A. NAIROBI 3998 AND PREVIOUS

B. NAIROBI 1669

1. (SBU) Summary and Introduction: The Electoral Commission
of Kenya (ECK) Chairman Samuel Kivuitu recently prepared a
speech on the theme "Election 2007: Can Kenya Remain a Model
for Africa?" The speech was delivered to the Kenya Alliance
of Resident Associations by Kivuitu's deputy, as the Chairman
was ill. The speech was characteristically frank and
critical. Kivuitu took a swipe at the Attorney General's
office for its attempts to curb the ECK's ability to sanction
wayward political actors and civil servants, and its refusal
to take any action of its own to promote correct democratic
practice. The speech is repeated here in its entirety.
Kivuitu's tenure ends on 2 December, just prior to the
elections. Kibaki made private assurances that the contracts
of Kivuitu, his Vice Chair and the six commissioners whose
terms expire at the end of October would all be renewed to
allow for continuity during the election period. However,
following those assurances, the Vice Chair's contract was
allowed to expire and the President then named another new
commissioner. This is a bad omen as regards the fate of the
other veteran commissioners. We have emphasized in public
and private messages the importance of continuity of ECK
leadership. We and other election process donors are
developing a contingency plan to fill the breach should we
become convinced that the ECK will not perform its proper
role. End Summary and Introduction.

Election 2007: Can Kenya Remain a Model for Africa?
--------------------------------------------- ------

2. (U) Kivuitu's speech as written follows: "True the way we
as Kenyans conducted ourselves during the 2002 general
elections won applause from many sources all over the world.
I agree we did well as a nation but was that because we had
become better democrats or it was just luck? (God smiled at
us and we obliged!). I have tried hard to fathom out which
of the two was the case (or indeed a combination of the two)
but I regret I have been unable to find the answer.

3. (U) Look at the matter from all perspectives. Kenyans are
still tribialist in a very negative way. They still embrace
election violence. Voter bribery is still rampant. Misuse
of State resources for electoral victory is still the order
of the day. Indeed there is reason to feel concerned that
public officers will be used to exploit their privileged
positions in order to advance the election cause of some of
those in power. The Electoral Commission is not truly a
reflection of this nation in terms of composition and the
manner it is constituted. ECK's security of tenure is
illusory. Political parties have very little chance to
compete fairly. In any case their registration can still be
used as a tool against fair competition at election time.
All these grave weaknesses have the capacity to derail, to
imperil, our progress towards democracy. Until theses are
resolved in a manner that supports the pursuit for democracy
our claim, in my view, that we are a a democracy or that the
2002 general elections put us there is fictitious. Just as
we have improved with regard to our respect for freedoms
which go with democracy we must take steps to correct these
grave deficiencies. The potential is there for us to achieve
success in these fronts because the current Government does
indeed give hope in that direction and the people of Kenya
are now far much more enlightened about their political and
economic rights and have displayed keen interest to protect,
safeguard and advance these rights. Indeed the coming
general elections promise to provide a true barometer as to
how far we have moved towards the democracy destination.

4. (U) ECK is well prepared to conduct these elections,
thanks to the Government's generous support and that of
friendly donors like UK, US, Germany, Netherlands, Norway,
Denmark, Canada, Australia, Finland, Sweden, through the
United Nations Development Programme (UNDP). The
reappointment of the Chairman, the Vice Chairman, and other
seasoned commissioners of the ECK should not cause too much
concern since I believe the Government has no intention to
rock the boat. My interaction with higher authorities has
convinced me that all will be well in the end. Indeed H.E.
the President is clearly focused on what he expects at
election time i.e. peace and tranquillity with properly

managed elections. Many of the members of the ECK are ready
and willing to go the extra mile to maintain electoral
discipline within the political parties, their candidates and
supporters even if it appears to exceed its restricted
mandate. It will rely on the provisions of section 42 A of
the Constitution of the Republic which empowers it to promote
free and fair elections. These provisions must be given a
meaning. They must be made to prevail. Let the judiciary
condemn ECK for this attitude which it proposes to assume.
ECK will not purport to be the judiciary and limit or
restrict its mandate. That will be left to that learned and
esteemed institution to judge. ECK should adopt the
proactive posture that has made the Indian Electoral
Commission (with the full support of the Supreme Court of
India) rein in politicians and civil servants. That
Commission is a model election management body (EMB). ECK
should emulate it. Our judiciary should also learn from the
Supreme Court of India. Ghana and South Africa are other
nations with EMB's to emulate. Democracy is not realizable
without a strong and supportive judicial bench.

5. (U) ECK would like to appeal to Kenyans to abandon
negative tribalism, election violence and voter bribery.
Negative tribalism is repulsive. It can never support
democracy. It leads voters to choose useless leaders just
because they are our own. Useless leaders will always be a
curse to a country. God brought us all to this beautiful
land to live together. Tribialists commit the heinous crime
of contempt of our great God when they appear to challenge
His arrangements and schemes. Election violence is painful -
it hurts democracy severely. So is bribery. All these vices
lead to the election of inefficient, ineffective and bogus
leadership. Any politician who advocates or practices any of
these vices should be avoided like a witch.

6. (U) ECK earnestly urges Kenyans to support its efforts to
conduct the elections fairly and freely, competently and
efficiently. All registered voters have a duty to vote out
useless leadership and to elect leadership that is honest and
democratic -- leadership that will bring about stability,
unity and prosperity."

Comment: Seeking ECK Continuity, But Contingency Plans Afoot
--------------------------------------------- ---------------

7. (SBU) Kivuitu is the real deal. He sincerely believes in
a fair and transparent administration of the electoral
process. That said, the ECK is largely toothless, and
Kivuitu is in ill health. During the pre-electoral campaign
period, it has no official standing to curb abuses. Once the
official campaign begins, upon the formal dissolution of
parliament, ECK has more authority and receives a detachment
of police to enforce its dictates, but is still hampered by
an ill-defined role in sanctioning campaign abuses. On
election day itself, the ECK has been able to enforce
balloting rules, and did so credibly in the most recent
general election and subsequent by-elections. The ECK makes
decisions by consensus. The Chairman is merely prima inter
pares.

8. (SBU) An agreement between the opposition political
parties (including Kibaki's Democratic Party) and the then
ruling party in the run up to the 1997 elections called for
naming ECK commissioners through an informal consensual
process. This agreement was never codified in law. Kivuitu
was appointed to ECK under this consensual procedure, which
the Moi regime faithfully observed. However, under the law,
the President has sole authority to name members of the ECK,
who then serve for a fixed period by contract. President
Kibaki has appointed several new commissioners over the last
year without inter-party consultations, thereby observing the
letter of the law but ignoring the inter-party handshake
agreement that he had helped negotiate when in the
opposition. The most recent by-election, in March 2007, was
handled in a responsible manner, but some observers worry
about Kivuitu's ability to maintain ECK's high standards
during the upcoming general election given the very high
stakes and the majority of unilateral Kibaki-appointed ECK
commissioners. Recently, the Vice Chairman's contract was
allowed to expire. The President then named another new
commissioner.

9. (SBU) Ref B details USG support to the Kenyan electoral
process, including strengthening of the ECK. We have
emphasized in public and private messages the importance of
continuity of ECK leadership. We are developing a
contingency plan along with other election process donors to
fill the breach should we become convinced that the ECK will
not perform its proper role.
SLUTZ

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