SENATOR FEINGLOD TOLD OF CHALLENGES TO KENYA'S

UNCLAS NAIROBI 005183

SIPDIS

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: N/A
TAGS: KDEM PGOV KE
SUBJECT: SENATOR FEINGLOD TOLD OF CHALLENGES TO KENYA'S
ELECTORAL PROCESS AND HUMAN RIGHTS RECORD

REF: A. NAIROBI 3973

B. NAIROBI 3679


1. (SBU) Summary and Comment: Top electoral and human
rights officials confided to Senator Feingold the numerous
challenges facing the independence of their institutions.
The Electoral Commission of Kenya highlighted the limitations
on their ability to penalize electoral malpractices, while
the Kenyan National Commission on Human Rights cited
politically motivated corruption charges and control over
their finances as government tools to silence its critics.
The Senator's diplomatic show of support to both of these
beleaguered institutions gives a much needed boost to their
efforts to promote human rights, including a free and
transparent electoral process. End Summary and Comment.


2. (U) Senator Russell Feingold, staffer Grey Frandsen,
Polcouns, and Poloff visited the headquarters of the
Electoral Commission of Kenya (ECK) on November 28 and met
with top electoral officials at a time when the credibility
and independence of the institution is under threat. ECK
Chairman Samuel Kivuitu, joined by three other commissioners,
highlighted the difficulties facing the institution regarding
the upcoming national elections, anticipated to be held late

2007. Senator Feingold applauded the ECK's successful
management of the 2002 general elections.

Electoral Shenanigans Difficult to Discourage
--------------


3. (SBU) When asked by Senator Feingold about what the
Commission is doing to respond to allegations of misconduct
during the July by-elections, including misuse of government
resources and flat-out bribery by politicians and their
supporters (ref A),ECK chairman Kivuitu said that the ECK
was very concerned about the allegations and had received
three separate reports documenting allegations of
irregularities. He said he even received a call the day of
the polling from a distraught ECK commissioner who had
witnessed first hand misconduct by senior political leaders
in broad daylight. However, he complained that the ability
of the ECK to take action to redress electoral malpractices
is severely constrained. Kivuitu lamented that the ECK's
hands were tied to impose serious consequences for misconduct
such as to nullify or delay election results. While in
theory, the ECK could take such action, in practice it is
nearly impossible under current regulations. According to
Kivuitu, to delay or nullify the results, the ECK must
present concrete evidence of the wrongdoing to a High Court,
which may be several hours drive from the location of the
alleged electoral malpractices, before the close of the polls
-quite a Herculean feat under even the most favorable of
circumstances. At best, the tools available to the ECK allow
them to reprimand and/or fine wrong-doers. Kivuitu stated
that he and other commissioners have been agitating for
change to these provisions, but was pessimistic about
achieving the changes through law due to the paralyzing
effect of political wrangling on law-making in Parliament.


4. (SBU) Kivuitu explained that the allegations contained in
the three reports are being extensively reviewed and analyzed
by the committee on the electoral code of conduct. Kivuitu
suggested that the ECK's response in this instance might be
to call a press conference and name and shame the culpable
parties, to drive home the point that misuse of state
resources and illegal inducements to voters is wrong and will
not be tolerated. (Note: Kivuitu did not suggest fines as an
option in this case, perhaps acknowledging the significant
obstacles to taking tougher action posed by certain members
of the ECK who are allied with the political parties accused
of the misconduct. End Note.)


5. (SBU) The ECK's limited ability to impose penalties for
electoral violations is compounded by the composition of the
Commission. Currently, commissioners are appointed to
represent political interests, i.e., government or
opposition, and these loyalties undermine the independence of
the commission and its ability to take disciplinary action,
according to Kivuitu. The ECK Chairman stressed that it is
of paramount importance that the Commission be perceived by
all Kenyans to be objective. Kivuitu stated that the
credibility of the institution would be adversely affected if

proposed changes (including changes to the composition of the
ECK in the Elections Bill currently before Parliament) to the
ECK were adopted so close to the general election.

Critical Human Rights Body
Defiant Despite "Corruption Whip"
--------------


6. (SBU) Senator Feingold followed his visit to the ECK with
a call on the headquarters of the beleaguered Kenya National
Commission on Human Rights (KNCHR). The Chairman of KNCHR,
Maina Kiai, expressed his appreciation for the Senator's
visit and the continued support of the U.S. Embassy. The
KNCHR, and Kiai in particular, has been very outspoken in its
criticism of the government on human rights, corruption, and
even the misuse of state resources in political campaigns.
(Note: the KNCHR's report on electoral abuses during the July
by-election is among the reports currently being reviewed by
the ECK. End Note.) Kiai, who has been the victim of
allegations of corruption, widely believed as a result of his
outspokenness (ref B),accused the government of brandishing
the "corruption whip". He explained that under the previous
regime, accusing opponents with "sedition" was a favored tool
to silence critics. He said that the current administration
has replaced "sedition" with "corruption", with the intent of
having equal effect in silencing the government's perceived
opponents.


7. (SBU) The KNCHR Chairman explained that the current
funding structure also poses a direct threat to the KNCHR's
independence. Unlike the Kenya Anti-Corruption Commission,
which is funded directly from the Treasury, the KNCHR
receives its funds through the Ministry of Justice and
Constitutional Affairs. Kiai stressed the inherent conflict
of interests in bestowing the power of the purse to an
institution over which the KNCHR has a mandate to exercise a
watchdog function.

U.S. Support for Balancing Human
Rights and the Counter-Terrorism Agenda
--------------


8. (SBU) Senator Feingold expressed his support for the
efforts of the KNCHR to ensure that provisions of the
proposed Anti-Terrorism legislation adequately balances the
protection of human rights and national security concerns.
Feingold's explanation of his objections to the U.S. Patriot
Act were well received by the human rights audience and his
emphasis that while counter-terrorism and security are top
U.S. priorities, the safeguarding of human rights is
essential. This message that enhanced security and the
protection of human rights are not necessarily mutually
exclusive is a timely and welcomed addition to the pubic
debate in Kenya over the controversial Anti-Terrorism
legislation.













RANNEBERGER