MORE DEATHS AS KENYA HEADS INTO CONSTITUTIONAL

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004749

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 11/14/2025
TAGS: PGOV PREL ASEC KDEM KE
SUBJECT: MORE DEATHS AS KENYA HEADS INTO CONSTITUTIONAL
REFERENDUM

REF: A. NAIROBI 4551

B. NAIROBI 3847

Classified By: Political Counselor Michael J. Fitzpatrick for reasons 1
.4 (b,d)


1. (C) SUMMARY: With just one week remaining before the
constitutional referendum, four more Kenyans died in police
clashes at an Orange ("No") rally. Meanwhile, while the
Banana ("Yes") team has resorted to more underhanded methods
(such as scheduling presidential travel to force cancellation
of planned "No" rallies) to thwart Orange efforts. A
November 15 a court ruling allowing the referendum process to
continue denied the government-backed pro-draft constitution
team an opportunity to walk away from the constitutional
race. The debate, which has become a proxy battle for power
in Nairobi, will continue at least until November 21 -- and
likely well beyond. END SUMMARY.

ORANGE SUPPORTERS CLASH WITH POLICE
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2. (U) After a two-week hiatus from deadly violence, four
more Kenyans died during a November 11 "No" rally in Likoni,
on the coast south of Mombasa, which police disrupted for
being "illegal." A fiery riot erupted when officials denied
the Orange team permission to hold the event as it coincided
with President Kibaki's "impromptu" visit to the area. The
latest violence renewed allegations of excessive use of force
by police (the same was said after four deaths at a Kisumu
rally on October 29 (ref A)). Mombasa was only his second
foray out of Nairobi to campaign for the proposed draft
constitution, but President Kibaki will follow his coast trip
with a visit to Western Province from November 15, where
Orange also has previously planned rallies.


3. (C) Following the violence, reports emerged that the
government had canceled the last week of "No" rallies.
Although, according to the media, Internal Security Minister
John Michuki confirmed that he had indeed called off the
Likoni rally, Coast NARC Coordinator Karigithu dismissed the
rumor of a blanket ban as propaganda to taint the
government's image. Equally insistent, "No" team referendum
steering committee member Josephine Odhiambo told Poloff that
her group was going ahead and that Orange rallies will
continue.

ELECTORAL COMMISSION: TAKING A STAND OR STANDING BY?
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4. (C) Electoral Commission of Kenya (ECK) Vice Chairman
Gabriel Mukele had announced November 7 that the ECK would
ban further campaigning if there were any more deaths in
connection with "Yes" or "No" rallies. Mukele's reprimand
recalled an earlier statement from the ECK requesting the two
teams to refrain from holding events in advance of the
"official" campaign period (ref B). The Vice Chairman's
previous warning was largely ignored, apart from retorts that
the organization was toothless and thus unable to enforce any
policy decrees. Asked about the ECK's follow-up on its
November 7 statement in light of the renewed violence, Mukele
told Poloff that he and the other chairmen were meeting on
November 14 to consider the matter and that "something will
be coming very soon." Asked about the Commission's ability
to make good on its warning, Mukele referred to provisions in
the constitution and the electoral code of conduct.
(COMMENT: But ECK is powerless to enforce its opinions. END
COMMENT.)

THE REFERENDUM IS STILL ALIVE
--------------


5. (U) With the campaign period winding down (and the
intensity level ratcheting up),there are still calls to
postpone or cancel the referendum. In a November 12
interview, while reaffirming her neutrality in the debate,
Nobel Peace Prize laureate (and Assistant Environment
Minister) Wangari Maathai questioned the wisdom of "rushing"
into a decision on the constitution. Calling the referendum
"a farce," she said that national polarization along tribal
lines was being used as fuel for an intra-elite battle for
power. Indeed the entire process threatened to screech to a
halt on November 15, but in an hours-long decision before
cabinet ministers and members of Parliament, the Kenyan High
Court ruled against a suit alleging that the constitutional
review was illegitimate. Noting that it would be against the
public interest to call off the referendum, the court did not
find the argument sufficient to determine that the process
was illegal.

6. (C) COMMENT: The "Yes" team's underhanded attempts to
disrupt Orange plans by scheduling coincidental presidential
travel, exacerbating the intense animosity between figures on
both sides, further highlights the extent to which the
referendum process has cleaved enduring fissures in the
political landscape. The ECK, for all its good intentions to
run a free, fair, transparent, and non-violent vote is not
likely to take more than a rhetorical stand against
campaigners, illustrating the difficult job it has of trying
to officiate a clean fight without the tools to do so.
Denied the opportunity to walk away from the constitutional
race intact, the largely government-backed pro-draft
constitution team will intensify its efforts (read: step-up
the favor granting) to ensure a win for the document and to
retain the upper hand in the national political debate in
Nairobi. As the President's strategic advisor told us after
the court's ruling, "we are working at full throttle." END
COMMENT.
ROWE