KENYA'S GAMBLE ON A NEW CONSTITUTION UNLIKELY TO

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004683

SIPDIS

E.O. 12958: DECL: 11/09/2025
TAGS: PGOV ASEC PREL KDEM ECON KE
SUBJECT: KENYA'S GAMBLE ON A NEW CONSTITUTION UNLIKELY TO
PAY OFF

REF: A. NAIROBI 4551

B. NAIROBI 4143

Classified By: Political Counselor Michael J. Fitzpatrick; Reasons 1.4
(B&D).


1. (C) SUMMARY: Kenya's November 21 referendum on a
proposed new constitution risks further polarizing the nation
along tribal lines, regardless of the outcome. With the
"Orange" opposition increasingly confident of victory, the
stage is being set for continued political standoff if they
win -- and violent protests if they lose. END SUMMARY.


2. (C) The ongoing campaign leading to the November 21
national referendum on a proposed new constitution is only
secondarily about "how" power is wielded; the real issue is
"by whom." Kenya's last national elections in 2002 decided
who would NOT rule Kenya, with Daniel arap Moi stepping down
after 24 years of power, but it did not resolve decisively
who would really hold sway post-Moi. The Kikuyu tribesmen of
Mwai Kibaki's NAK/DP (&NAK8) faction came to power by
creating a National Rainbow Coalition ("NARC") with Raila
Odinga's LDP party, which is dominated by the Luo people.
Kibaki became President, but Odinga, who had been promised
the to-be-created Prime Ministry under the to-be-promulgated
new constitution, was double-crossed when Kibaki,s
government failed to promulgate the new constitution.
Kenya's national politics, and the NARC, have been stalemated
ever since.


3. (C) Both sides have become increasingly explicit that the
referendum is less about the text of the proposed
constitution and more a vote of confidence -- or no
confidence -- in President Kibaki's continuing
administration. Many view the vote as an attempt to ratify
the NAK's betrayal of the LDP -- and the draft as locking in
Kikuyu dominance over other tribes. The fact is not lost on
anyone that President Kibaki leads the charge for the YES (or
"Banana") campaign, and Roads and Public Works Minister
Odinga has joined forces with ex-president Moi's KANU
opposition to lead the NO (or "Orange") campaign against the
new draft constitution. Already, some politicians are
calling for snap elections if Kibaki fails to obtain approval
of the new constitution. And the NO camp increasingly
believes it will have the numbers to block the new
constitution at the polls.

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"All politics is tribal"
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4. (C) The national debate has increasingly turned tribal --
and violent. The killing by police of four persons after an
October 30 YES rally in Kisumu, Odinga's hometown, was but
the clearest manifestation (Ref A). (There is no doubt that
Orange protestors sought to prevent the Banana rally. But
the killings appeared to take place away from the rally site
-- and after it had concluded. One autopsy appeared to
vindicate Orange claims that the dead man had been dragged
from his house and shot at pointblank range. That the others
killed were children -- including the uniformed schoolboy son
of a police official, shot in the back of the head -- added
to the outrage.) Tribal politics have surged to the fore,
with pro- and anti- forces both spreading vicious lies and
wild gossip about each other. Information Minister Tuju
(whose Kisumu rally precipitated the violence) has warned
tribal radio stations not to encourage incitement -- a la
Rwanda, 1994. But the line is a thin one. The manager of
KISS-FM, a major Nairobi station (himself a Kalenjin, close
to ex-President Moi and in the NO camp) has been threatened
with being pulled off the air -- and his Ghanaian co-manager
deported -- if verbal criticisms of the YES/Banana campaign,
and of First Lady Lucy Kibaki, do not cease. The manager is
scared for his safety, and that of his family. Meanwhile,
pro-Banana Citizen Radio has been accused repeatedly of
spewing venomous incitement against tribes viewed as opposed
to the new constitution.


5. (C) Many Kenyans are alarmed by the speed and intensity
of the turn to tribalism. Kikuyu communities have circled
the wagons -- convinced that the Luo and other tribes are
attempting to use the referendum to rollback Kikuyu gains.
YES Ministers have publicly accused the United States Embassy
and the UK High Commission of financing the NO campaign,
which only bolsters suspicions that we are intent on bringing
down the Kibaki government. (Their reason for our alleged
unhappiness? Because NARC refuses to be a lapdog for UK
financial interests.) A massive get-out-the-vote effort is
underway in the Kikuyu heartland, in the belief that a large
and solid YES vote by Kikuyus would be enough to carry the
day for YES, regardless of Kenya's 40-plus other tribes. The
Kikuyu have isolated themselves -- and now risk being seen as
national spoilers, tribal polarizers, regardless of whether
Kibaki should win or lose the referendum.


6. (C) The NO campaign is increasingly convinced it will win
the referendum. One public opinion poll showed them 10
points ahead -- but with a quarter of voters still undecided.
Another poll has them leading almost 2 to 1. "The only way
we can lose," they say, "is if the vote is stolen from us."
NO campaigners are intensifying efforts to educate
vote-counters and observers. The YES camp's continuing
confusion and disorganization (e.g., it cannot even decide if
the draft constitution is, or is not, a government proposal)
suggests the arrogance of incumbency -- and perhaps a bit of
desperation. The YES camp is aggressively courting various
tribes and interest groups with financial incentives -- land
titles, salary hikes, and revenue streams (Ref B). While it
remains unclear just how much such inducements will
ultimately cost the central treasury, it is also unclear that
voters are responding positively to the incentives. There
are also reports that government trucks have ferried
truckloads of clubs, machetes and guns to the farm of at
least one YES parliamentarian in the Rift Valley, a province
that remains up for grabs between YES and NO campaigners.

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What Happens Next?
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7. (C) There is no easy, short-term glide path for Kenya. A
narrow margin of victory by either side risks being
challenged by the losers as an illegitimate theft of popular
will. Conventional wisdom has been to hope that whichever
side wins does so handily, so the results would quickly
obtain legitimacy and national acceptance. Another
oft-whispered scenario has President Kibaki saving face by
privately signaling for judges to rule against his holding
the referendum as planned -- and throw the draft text back to
Parliament for further debate and amendment. But, despite
the pending court cases, this option might no longer be
politically viable. With the Orange/NO camp now believing
its own momentum is unstoppable, kicking the text back to
Parliament would be seen by Kibaki opponents as denying them
their due and preventing them from killing the draft once and
for all. Perhaps anticipating defeat, the YES camp has
recently begun to deflate the vote's importance as a
political test of wills.


8. (C) Should there actually be a YES win -- even by a wide
margin -- the Orange camp is likely to cry fraud and turn to
popular protest. (Indeed, some are already making wishful
comparisons to Ukraine's "Orange Revolution.") The
possibility for violence under this scenario is real. The
YES forces, emboldened by their win, likely would be quick to
unleash the security forces against the opposition --
especially if talk of "people power" and "regime change"
fills the air. (Security Minister Michuki, himself a Kikuyu
campaigning for YES, spoke darkly after Kisumu of maintaining
the state's monopoly on the use of force.) But even should
the Oranges readily accept defeat, the legal system would be
in for very tough times. Hundreds of pieces of legislation
will need to be passed to bring current laws into conformity
with the new constitution, which is to be promulgated
December 12 -- yet historically Parliament is incapable of
passing even a dozen laws a year. Kenya would thus likely
face a prolonged period in which all key institutional and
economic reforms requiring legislation would be stuck in
legal limbo.


9. (C) Should the NO team win handily, pressure would mount
for early elections to unseat President Kibaki. A
Parliamentary vote of "no confidence" could come as early as
the first quarter of 2006. Close to half of all
parliamentarians are already publicly pro-Orange. Other
solons likely would be pressured by their constituents should
the NO vote carry overwhelmingly despite their own pro-Banana
stances. One brake on this possibility is the fact that MPs
-- of all persuasions -- are generally loath to risk their
own (lucrative) seats short of a full five-year term. Even
if there were no early vote, the campaign for 2007 will have
begun in earnest. And with the LDP formally allying with the
KANU opposition, and riding high after defeating the
referendum, an already weak President Kibaki will garner
"lame duck" status. The prospects for significant political
progress during the rest of his term on key issues of
interest to us -- counter-terrorism, anti-corruption, good
governance, economic reform -- will be similarly reduced.
BELLAMY