KENYA'S ELECTORAL COMMISSION: DETERMINED BUT

C O N F I D E N T I A L NAIROBI 005207

SIPDIS

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 12/07/2026
TAGS: KDEM PGOV PREL KE
SUBJECT: KENYA'S ELECTORAL COMMISSION: DETERMINED BUT
FACING ADVERSITY

REF: A. NAIROBI 3973

B. NAIROBI 5129

Classified By: Political Counselor Larry Andre for reasons 1.4 (b,d)


1. (C) SUMMARY: The Electoral Commission of Kenya is not

insulated from the rising political temperature in Kenya
ahead of next year's general election. The Commission is
feeling the heat too, Chairman Samuel Kivuitu told the
Ambassador, describing how party politics and government
machinations are threatening to undermine the organization.
Documented evidence of serious misconduct by candidates and
their supporters during July's by-election present the
Commission with an opportunity to send a strong message on
acceptable electoral behavior next year and reassert its
independence. END SUMMARY.


2. (C) Electoral Commission of Kenya (ECK) Chairman Samuel
Kivuitu is fighting hard to keep his organization and the
running of Kenya's elections credible and independent. In a
December 5 luncheon with the Ambassador, Kivuitu expressed
his frustration with Kenyan politics, and the unfortunate
extent to which it affects his Commission. With the terms of
several commissioners expired and every indication that the
government will hand pick replacements, Kivuitu is concerned
about the continued strength of the Commission and its
ability to run a transparent and competitive election next
year (ref A).

IN KARUA'S CROSSHAIRS
--------------


3. (C) Justice and Constitutional Affairs Minister Martha
Karua is determined to water down the ECK, Kivuitu told the
Ambassador. The strength of the Commission, since 1997, has
been that its commissioners were evenly split among those
appointed by the government, and those named by opposition
parties. With the expiration earlier this year of the terms
of several commissioners, the ECK is left with a 10-3 split
in favor of the government, Kivuitu explained. Although
President Kibaki had assured Kivuitu that opposition
commissioners would be named, Karua convinced the President
otherwise. Kivuitu had earlier described a "heated" exchange
of letters on the subject of commissioners' appointments with
Karua. He was not confident that there would be any
opposition appointments.

ECK DE-FANGED
--------------


4. (C) The ECK's current imbalance surfaced recently with
respect to evidence, presented by the Kenya National
Commission on Human Rights (KNCHR),of serious misconduct
during July's by-elections. Although Kivuitu wanted to come
out swinging - publicly naming the culprits as well as
imposing fines (the extent of disciplinary measures the ECK
can take within its mandate) - other commissioners refused.
Instead, the ECK has only written letters to the politicians
implicated. (NOTE: The Ambassador plans to join other
concerned heads of mission in calling on the ECK to encourage
the Commission to take action based on the facts presented.
END NOTE.) Disappointed with some Commissioners'
"cowardice," Kivuitu remarked "our teeth aren't dull, they've
been pulled out."

PREY TO PARTY POLITICS
--------------


5. (C) The Electoral Commission has also been dragged into
the current leadership struggle within the KANU party (ref
B). KANU members allege that the party's takeover by MP
Nicholas Biwott was a government scheme to manipulate the
Electoral Commission's composition. In their analysis, the
government will ask the Biwott KANU to name new commissioners
(who will actually be pro-government) and call them
"opposition" selections. Kivuitu remarked to the Ambassador
that he had no doubt the government was involved in the KANU
coup. About a letter the ECK wrote to (former) KANU Chairman
Uhuru Kenyatta recognizing the Biwott slate of officers,
Kivuitu confirmed he had sent the message, but had done it to
help Kenyatta. Kivuitu, who has no fondness for Biwott ("he
should be in prison"),explained that he wanted to let

Kenyatta know the ECK had received a letter from the Biwott
faction announcing their registration. Kivuitu added that he
acted independently of the other Commissioners, alerting
Kenyatta that formal notice from the Registrar would soon
follow.

THE POT-HOLED ROAD TO 2007
--------------


6. (C) Despite the significant hurdles placed before the
ECK, the Commission is proceeding with preparations for the
expected general election next year. Kivuitu has requested
the government to invite international observers, such as the
Carter Center, and is working with local civil society
organizations to put in place a coordinated domestic
observation program. Kivuitu had earlier explained to a
USAID Officer that the Electoral Commission had conducted its
mandated periodic review of constituency boundaries and
recommended the addition of at least 50 new constituencies.
The steps involved in effecting this recommendation are
numerous; among them the constitution of Kenya must be
amended to allow for more than the current 210, and voters
who reside in a new constituency will have to re-register.
Kivuitu confessed that when asked if he would simply give in
and resign, part of him would like to walk away. However,
after what he saw during the July by-elections ("the worst
I've ever seen") he believes there is much more work to do.


7. (C) COMMENT: Kivuitu is a man in a tough spot: his
attempts to do his job and fulfill the ECK's mandate are
provoking resistance. The immediate challenge for Kivuitu is
the ECK response to the overwhelming evidence of misconduct,
on all sides, during the by-elections. If the ECK is unable
to hold the culprits accountable, then an important check
will disappear prior to next year's elections. The ECK knows
what to do and has done it before - in 2002 and during the
2005 referendum - very successfully. Unless the dedicated
Kivuitu is stymied, the Commission can repeat those
performances next year. The Mission will continue to support
the ECK through direct assistance and also by encouraging it
to take a strong stand against those who seek to rollback
Kenya's democratic gains.


8. (SBU) COMMENT CONTINUED: As agreed with other donors, the
Mission is taking the lead coordinating electoral assistance.
This will give us important leverage and influence to help
ensure a transparent, inclusive, and credible process. END
COMMENT.
RANNEBERGER