Cablegate: Constitutional Debate 1: A Primer On the Contentious Issues

DE RUEHNR #2666/01 3561409
O R 221408Z DEC 09



E.O. 12958: N/A
SUBJECT: Constitutional Debate 1: A Primer on the Contentious Issues


1. (U) Summary: This cable is part one of a five part series on the
contentious issues and political landscape surrounding the debate
on Kenya's Harmonized Draft Constitution. This cable provides a
snapshot of the outstanding contentious issues in the draft
constitution: executive authority, devolution, judicial reform, and
the Kadhi's courts. Cable two analyzes the influential voices,
political position, and strategy of President Kibaki's Party for
National Unity (PNU)in respect to the draft; an analysis of Prime
Minister Raila Odinga's Orange Democratic Movement (ODM) follows in
cable three. Cable four reports on the efforts of moderates, both
within and outside of the two major parties, to broker a compromise
between hardline ODM and PNU positions. Cable five assesses the
dynamics of public opinion and special interest groups in the
context of the upcoming national referendum on the draft

2. (SBU) Summary continued: Kenya's two main political parties are
currently locked in tense negotiations over the draft constitution.
Agreement must found during the course of talks if the
constitutional review and referendum process is to be peaceful and
successful. The parties are far apart on how to vest power in a
president or a prime minister, as well as the method of election.
Differences also remain over devolved government, the judiciary, a
recall provision for members of parliament, and Kadhi's courts.
Kadhi's courts address only civil issues under sharia law where
both parties are Muslims, but are opposed by some major Christian
organizations. It remains unclear whether the parties will
negotiate in good faith, or use political alliances to push
parochial agendas. End summary.

3. (SBU) As debate on Kenya's draft constitution moves from the
public sphere to Parliament, stumbling blocks to consensus are
emerging in key areas. Both parties are fighting vigorously over
the structure of the executive and the status of devolved
government. The major parties agree on the framework of the
judiciary and the inclusion of Kadhi's courts, but the two issues
are contentious with domestic interest groups. The public comment
period ending on December 17; as a result, many decisions will be
made between the Committee of Experts (CoE), tasked with drafting
the constitution, and Parliament, which must approve a draft before
it proceeds to a national referendum.

4. (SBU) It is unclear whether the two Grand Coalition committees,
the vehicle for major political parties to reach consensus on the
draft, will continue negotiating after the public comment period
ends. The next step in the process requires the CoE to deliver a
new draft to the Parliamentary Select Committee (PSC) on January
7th. Party leaders could delay negotiations if they perceive a new
draft strengthening their position. Meanwhile, interest groups will
lose their ability to influence the CoE directly, and will be
forced to rely upon Members of Parliament (MPs) to negotiate on
their behalf. At the Parliamentary stage, a two-thirds vote is
required to alter the draft constitution. The PSC and Parliament
will be able to send the draft back to the CoE a total of two times
before a final draft must be voted on by the entire parliament
between mid-March and early April prior to a referendum.

5. (SBU) The Party of National Unity (PNU) and the Orange
Democratic Movement (ODM) have tasked the Grand Coalition
Management and Technical Committees with negotiating a compromise.
The six-member Technical Committee is most involved in the detailed
negotiations, led by Justice Minister Mutula Kilonzo for PNU, and
Odinga adviser Miguna Miguna for ODM. The inclusion of many
politicians with presidential ambitions on the Management Committee
could complicate negotiations. Currently Deputy Prime Minister
Uhuru Kenyatta, Deputy Prime Minister Musalia Mudavadi, Agriculture
Minister William Ruto, and Internal Security Minister George
Saitoti are all rumored to be seeking higher office in 2012 or
beyond, and may negotiate with an eye to personal advantage.

6. (SBU) Debate over the powers of the executive could determine
the success or failure of the draft constitution. The draft
proposes a popularly elected president as head of state with
limited powers, and a prime minister, appointed as the head of the
largest party or coalition in parliament, to serve as head of
government and run day-to-day affairs through the cabinet. Though
both sides agree in principle to a hybrid system, the division of
power remains the main point of contention. For example, plans have
been discussed which allocate defense and foreign affairs powers to
the president with other cabinet agencies under the purview of the
prime minister, though concrete proposals have not yet emerged.

7. (SBU) At this time, President Kibaki's PNU is pushing to retain
a powerful, directly elected president as head of state and
government. They propose a president with the authority to appoint
and remove the prime minister who would run the day-to-day affairs

NAIROBI 00002666 002 OF 002

of government. PNU believes that it is disadvantaged by the current
constituency-based system and is adamant that the president be
directly elected. The largest constituency in Kenya is roughly 18
times the size of the smallest, and most large constituencies are
in PNU strongholds. This system puts them at a disadvantage as they
have more voters casting ballots for a small number of MP's, thus
losing ground in parliament. It is PNU's belief that they would
receive a majority of votes in a one person-one vote system, and
want to retain a powerful presidency that could operate with a
mandate from the people. This proposal largely maintains the status
quo of the Coalition Agreement reached in February, 2008, but with
expanded presidential oversight of the prime minister. For further
analysis of the PNU position, see Cable 2 in this series.

8. (SBU) Prime Minister Odinga's ODM prefers a strong prime
minister elected from parliament. As the current constituency
system benefits ODM, they would prefer to retain executive power in
parliament, divided between the prime minister and a cabinet, with
limited interference from the president. They are pushing for
safeguards that would prevent the president or the prime minister
from unseating each other unilaterally. Elements of a Mixed Member
Proportional system, in which votes are cast for both a member of
parliament and a preferred ruling party, could serve as a
compromise position on the method of election if a deal can be
reached on division of power. For further analysis of the ODM
position, see Cable 3 in this series.

9. (SBU) Both ODM and PNU united to oppose a clause in the draft
allowing for constituencies to recall their member of parliament
before the expiration of a term. Independent commentators favor a
recall provision, but it is not known whether the CoE will yield to
the wishes of Parliament or push through their own recommendations.
Legislation governing the drafting process is unclear regarding
whether the CoE or Parliament has the upper hand to make changes on
clauses in dispute.

10. (SBU) The parties are also discussing a devolution plan that
would create two levels of local government, each with its own
assembly and executive structure. There are calls from some in the
PNU camp to retain the current Provincial Administration system in
which decisions and budgetary control generally flow from the
national government. Those in favor of granting expanded powers to
local government acknowledge that creating executive and
legislative functions in eight regions and 74 counties is
cost-prohibitive. Community-based organizations are reporting that
the devolution issue may resonate with voters more than any other.
ODM is more amendable to devolution, and PNU could face problems
attracting marginalized communities if it pushes to retain the
status quo. A compromise on a single level of local government with
expanded powers is being discussed.

11. (SBU) The judiciary opposes a clause in the draft that forces
all judges to retire or submit to a vetting mechanism before they
can be reappointed. Judges are sensitive that other public service
members do not have to submit to vetting, but public opinion favors
any measures that would root out corruption. One judge told PolOff
that many would accept a vetting mechanism if they did not have to
resign first, amid fears that the already significant judicial
backlog would become much worse if all judges had to be vetted and

12. (SBU) The inclusion of the Kadhi's courts in the draft
constitution could be a major point of contention at the time of a
referendum. The provision maintains the use of the courts only for
civil issues between Muslims, a system that has been in place in
Kenya for over 40 years. However, some large Christian-based
organizations are opposed to the inclusion of the courts, claiming
the constitution should treat all religions equally. The Seventh
Day Adventist church will not oppose the courts, while the Catholic
church has struck a neutral tone. However the powerful National
Council of Churches of Kenya and some Evangelical and Pentecostal
groups have threatened to oppose the draft constitution if the
clause on Kadhi's courts is not removed.

13. (SBU) To date, mainstream members of both parties accept the
inclusion of the Kadhi's courts in the draft. Ultimately the issue
is a zero-sum game that will depend on political calculations and
the state of play at the time a referendum is called. Factions
opposed to other issues in the draft could join anti-Kadhi's courts
sentiment in order to rally religious communities to oppose a

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