"OFFICIAL" CAMPAIGN PERIOD KICKS OFF AS PRESIDENT

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004436

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 10/25/2015
TAGS: PGOV PREL ECON SENV KDEM KCOR KE
SUBJECT: "OFFICIAL" CAMPAIGN PERIOD KICKS OFF AS PRESIDENT
ENTERS THE FRAY

REF: A. (A) NAIROBI 4246

B. (B) NAIROBI 3781

Classified By: A/Political Counselor Lisa Peterson for reasons 1.4 (b,d
)


1. (C) SUMMARY: The "official" period for campaigning for or
against the proposed draft constitution kicked off on October
21, with the banana "Yes" team on the defensive following the
publication of unfavorable opinion poll results and President
Kibaki attracting criticism for allegedly defying a High
Court order. Violence continues to mar the now official
"Yes" and "No" rallies with two recent events requiring
police and tear gas intervention. With less than one month
remaining before the vote, some focus has shifted to the
heretofore relatively quiet Kibaki, and the extent to which
he will exert his executive authority over other legally
independent branches of the government to secure votes in
favor of the proposed draft constitution. END SUMMARY.

BANANAS AND ORANGES CRY SOUR GRAPES
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2. (SBU) Just in time for the start of the official campaign
period, local media reported the results of a nationwide
opinion poll on October 22, highlighting the finding that the
"Yes" team trails the "No" campaign by ten percentage points.
Also of note, nearly a quarter of Kenyans polled had not yet
decided, and of those who had, many were not firm in their
choice. While the anti-draft Orange group argued that the
margin was actually wider, supporters of the draft
constitution also cried foul, disputing the conclusion that
"Yes" is behind at all, and reverting to their now-familiar
refrain of questioning the funding behind the poll. Despite
their reported lead in the referendum race, two of the first
"official" Orange rallies on October 23 and 24 turned ugly at
the hands of pro-draft youths, who were ultimately dispersed
by police and tear gas.

KIBAKI FLEXES HIS EXECUTIVE MUSCLES
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3. (U) For "No" voters, according to the poll, an important
consideration was the strength of the executive in the
proposed draft, an issue that made headlines earlier in the
week. On October 15, President Mwai Kibaki distributed land
titles to members of the Ogiek community whom the government
had previously evicted in the interest of preserving the Mau
forest complex, immediately sparking outcry that the leader
had wittingly and openly defied a court order in doing so.
The Kenya High Court issued an order on October 14 calling
for suspended action on land awards to the displaced Ogiek
pending decision on a case that some members of the community
had been excluded. Critics argue that by proceeding in spite
of the court's decision, Kibaki had publicly and brazenly
suggested he was above the law, and that he had issued the
titles in an effort to win support for the proposed draft
constitution (ref A).


4. (C) According to the President's official website, Kibaki
dismissed as "cheap propaganda" the claim that he handed out
the deeds to "solicit favors," and chastised his critics for
politicizing the matter. Kibaki's defenders argue that the
court order applied to the Ministry of Lands, and not the
President, and that it referred to the "issuing" of deeds, a
lengthy process separate from the President's action, which
was simply to formally hand them over. However,
International Commission of Jurists (ICJ) Kenya Chairman
Otiende Amollo told poloff that a court order prohibiting an
action applies equally, and that while awareness of the
decision could factor in determining disobedience of a court
order, there is no question in this case that the President
knew of the ruling.


5. (C) Highlighting the matter as an executive abuse of
power, an October 21 "Kenya Times" editorial observed that
while Kenyans had come to expect ministers and other
officials to break the law, having the President "thumb his
nose" at the judiciary has opened a new, more worrisome
chapter. A separate report called for the Chief Justice, as
head of an independent branch of the government, to reprimand
Kibaki. The ICJ's Amollo concluded, however, that despite
the uproar, the President's defiance would likely go
unchecked.

DON'T UNPACK JUST YET
--------------


6. (U) The majority of the title deeds that Kibaki handed
out would resettle the recipients back in the Mau forest,
from where they were recently evicted (ref B). Those
evictions, carried out in an abusive and heavy-handed manner,
were part of a larger GOK effort to revitalize the country's
heavily deforested "water towers," the source of household
and agricultural water for most of central Kenya. The East
Africa Wildlife Society (EAWLS),which, along with other
organizations and individuals, filed a case in 2002 to stop
the illegal settlement in the Mau Forest, issued a press
statement that the "reopening of illegally excised forest to
settlement and issuance of title deeds to these forest
settlers is in breach of law and is in contempt of court" and
cautioned that the "beneficiaries should be aware of the
probability that they will be evicted again." The next High
Court of Kenya hearing on this case is scheduled for November
28, a week after the referendum.

7. (C) COMMENT: Even if the plan to resettle Ogiek evictees
had long been in the works, as Kibaki claimed, the timing
with respect to the referendum is suspect, and the action
with respect to the judiciary is troubling. Kibaki's land
handout will sharpen focus on his conduct in this final month
before the referendum, during which he is expected to hit the
campaign trail in earnest. END COMMENT.
BELLAMY