KENYAN CONSTITUTIONAL REVIEW: WAITING FOR A

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 005238

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 12/21/2025
TAGS: PGOV PREL PHUM KDEM KE
SUBJECT: KENYAN CONSTITUTIONAL REVIEW: WAITING FOR A
JUMP-START


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


1. (C) SUMMARY: Following the defeat of the proposed
document in the November 21 referendum, it is unclear if and
how the government plans to proceed with the process of
delivering to Kenyans a new constitution. What is abundantly
apparent is that the country expects the review to continue,
without further delay. President Kibaki has been
noncommittal on the issue, making obligatory but only passing
references to the need to continue work on a new
constitution. Observers have little faith in the newly
appointed Justice and Constitutional Affairs Minister's
interest in fulfilling the NARC government's long overdue
promise. Civil society is pushing hard for the process to
resume, but without government initiative, the review will
languish. END SUMMARY.

POLL RESULTS: CONSTITUTION MATTERS
--------------


2. (C) KANU Secretary General William Ruto's observed to
PolCouns and Poloff in a December 17 conversation that
Kenyans' high turnout for the referendum indicated they are
intent on a new constitution for their country. Poll results
published on December 21 confirmed Ruto's remark, revealing
that 74 percent of Kenyans considered it important to have a
new document in place before the December 2007 general
election. The same study found that 31 percent felt the next
step should be a review by a team of experts. On where to
start, nearly half of the respondents wanted the review to
commence with the Bomas draft, with the remainder split
nearly equally between using the Wako Draft (defeated on
November 21) or the current constitution as the baseline (22
and 21 percent, respectively).

CIVIL SOCIETY: TRYING TO KICK-START THE PROCESS
-------------- --


3. (SBU) On December 8, 50 Kenyan civil society
organizations met to discuss the "future of
constitution-making in Kenya." The result was a "Roadmap for
Post-referendum Process of Completion of Kenya's Constitution
Making," which lays out a timetable for putting in place a
new constitution by December 2007. The plan is comprised of
four stages, each with a completion date: governmental and
non-governmental stakeholders collaborate to draft
legislation formalizing the review process (30 March 2006);
passage and enactment of the new law (30 May 2006); drafting
of a proposed constitution, and referendum (31 December
2006); and operationalization of the new constitution (30
June 2007). NGO Action Aid, which held its own conference
November 30 with civil society groups to discuss how to
"midwife a new constitutional dispensation," has also
formulated recommendations for continuing the review process.
One concern, Action Aid told Poloff, is that with too many
independent initiatives, civil society runs the risk of
redundancy and loss of effectiveness.


4. (C) One of the event's organizers, activist Davinder
Lamba, told poloff on December 21 that one purpose of the
roadmap exercise, which focused on process and not content,
was to highlight that an excessively tight timeline would be
necessary in order to have a new constitution in place before
the 2007 general elections. The exercise demonstrated that
the 2007 deadline would be unrealistic, as any of the steps
along the way could become mired in controversy. Drafting
and passing the required legislation alone could take several
months. The alternative, Lamba remarked, would be for the
government to simply hand down a decision, "like before,"
which would not surprise him.

SWEPT UNDER THE STATEHOUSE CARPET
--------------


5. (C) For all the activity in the non-governmental sector
on constitutional review, official Kenya has been
noncommittal since the referendum, apart from rumors on
December 22 that the president would name a panel of 10
"neutral" experts to restart the process. Kibaki, in his
major speeches after November 21, has dutifully made scant
and vague reference to constitutional review. When he
announced his new cabinet on December 7, Kibaki acknowledged
the importance of a new constitution for Kenyans, pledging to
"facilitate dialogue and consultations," and establish a
legal framework. Two days later, swearing in his cabinet
(composed solely of people from his side of the
constitutional divide),he ironically called for a
"consultative and all-inclusive process." During his
National Day speech on December 12, he repeated his earlier,
brief, promise to facilitate the process. In these speeches,
he kept references to the constitution minimal, placing his
emphasis on urging Kenyans to focus on development issues.
In his remarks accepting the referendum outcome, Kibaki told
Kenyans that, after spending a lot of energy on
constitutional politics, it was "now time to refocus our
energies more intensively to development."


6. (C) Lamba doubted the government's commitment to
continuing, and completing, the constitutional review
process. There is no coherence within the government, which
has yet to take the time to reflect on this issue, he
commented. He was concerned that Kibaki might again put the
process in the hands of a single person, noting that Justice
and Constitutional Affairs Minister Martha Karua,
"contemptuous" of civil society, did not have a record of
valuing consultation. Ruto also had his doubts, remarking
that the new "hard-liner" Minister could block the
constitutional review process. The president is not very
interested in a new constitution, he added. Indeed, the
mandate of the government body responsible for the review
process, the Constitution of Kenya Review Commission, expired
on December 20, leaving the country without an official
organization to guide the process.


7. (C) COMMENT: Completion of the constitutional review
process will depend on whether the Kibaki government decides
to tune in to what the Kenyan people want. As organized and
vocal as civil society may be, it is up to Kibaki and
Minister Karua to propel the process forward, and determine
the shape it will take. All indications are that there is
little sense of urgency in the government to continue the
process, despite clear signals from Kenyans and civil society
that this is a priority. Even if State House does decide to
move ahead, Minister Karua's desire to do so meaningfully
will remain a question mark until she begins to speak to
Kenyans about how she intends to fulfill her mandate. With
77 percent of Kenyans confident a new constitution will be in
place in time for the 2007 election (according to the recent
poll),failure to deliver could create problems at the polls
for the Kibaki government. END COMMENT.
BELLAMY