KENYA CONSTITUTION: MINIMUM REFORMS, MAXIMUM DEBATE

C O N F I D E N T I A L NAIROBI 001514

SIPDIS

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 04/03/2027
TAGS: PREL PGOV KDEM KE
SUBJECT: KENYA CONSTITUTION: MINIMUM REFORMS, MAXIMUM DEBATE

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


1. (SBU) SUMMARY: A step back from complete overhaul, the
current constitutional review debate in Kenya centers on a
slate of "minimum reforms." Supporters of the proposed
changes, many of which concern the electoral process, argue
that these initial reforms must be made before the next
general election expected in December. Initially lukewarm to
the idea of piecemeal adjustments as a cheap substitute for a
new constitution, the government now supports certain
reforms, depriving the opposition of a key election issue.
END SUMMARY.


2. (SBU) Constitutional reform is a long-simmering debate in
Kenya. Despite the Kibaki administration's election promise
in 2002 to deliver a new constitution in its first 100 days
in office, the closest the country actually came to realizing
the pledge was November 2005's referendum, nearly 3 years
overdue. That draft, considered by its opponents an
illegitimate government project, was defeated. Debate on
constitutional reform subsided, until election season
approached. The opposition started first, calling for
minimum reforms without which it would boycott this year's
general election (mere "posturing" one civil society observer
called it). More recently, the government too has agreed on
the need for change. The agreement, however, ends there.
The two sides disagree on the precise nature of the reforms,
in particular those concerning the electoral process.

Electoral Reforms
--------------


3. (U) Among the reforms currently debated, a number will
effect the electoral process. They are: movement of the
political parties registration function to the Electoral
Commission from the Registrar of Societies; the Electoral
Commission's financial independence from the Ministry of
Justice; an increase in the number of nominated MPs from 12
to 36, of which at least 24 should be women; Parliamentary
authority to determine its own calendar; government funding
for political parties; a provision that a member of an
opposition party can only join the government with the
approval of his/her party (a prohibition on "poaching"); and
perhaps most controversially, that the winner of a
presidential election should gather more than 50 percent of
the votes nationwide, in addition to the currently required
25 percent in five of the eight provinces; the so-called "50
plus one" provision.


4. (C) When first proposed, the government rejected the
reform agenda as an attempt to change the rules of the
election game while the match is in progress. Justice and
Constitutional Affairs Minister Martha Karua defended the
Kibaki administration's record on constitutional reform,
arguing that the opportunity had passed; the government tried
to give Kenya a new constitution (in November 2005),but
Kenyans rejected it. More receptive to minimum reforms than
some of his colleagues in government, Trade Minister Mukhisa
Kituyi, who was at the time (pro-government) NARC-Kenya
interim Chairman, told poloffs that he was in favor of any
reforms that relate to the transparent, professional conduct
of the election. However, Kituyi was dismissive of the
opposition's call for reforms as simply their way of
tinkering with government to create offices (Prime Minister)
which will facilitate (opposition) ODM-K's internal
deal-making. While it is the opposition that has been most
vocal in demanding reforms before the election, many of the
suggested changes appear in a December 2006 report compiled
by Parliament's multi-party committee on Justice and Legal
Affairs.

Kibaki Takes the Bait
--------------


5. (C) Although in his March 20 speech opening Parliament,
Kibaki only offered the bland promise to "facilitate dialogue
on the nature and extent of the reforms that are needed,"
within a week, his government took more concerted steps to
address the issue. Vice President Moody Awori informed the
Ambassador on March 26 that earlier the same day the
government had a "constitutional breakthrough:" they must
accept the people's demand for minimum reforms. As such,
Awori explained, three bills which contain elements of
reform, the Constitution of Kenya Amendments Bill, the
Constitution of Kenya Review Bill, and the Political Parties
Bill will be prioritized on the House's agenda. The bills
will have to pass early enough for some of the provisions,
such as government funding for political parties, to be
included in this year's budget. In addition, the government
will form a committee of both pro-government and opposition
MPs, chaired by Karua, to develop a "roadmap" for reform.
The bills have since been published (the precursor to a
bill's tabling in Parliament) , and the government named its
members of the committee, which includes the Chair of the
Justice and Legal Affairs Committee, Paul Muite.


6. (C) The opposition reacted critically to the government's
sudden about-face on minimum reforms. When the committee
Awori promised was announced on March 27, a publicity message
from Raila Odinga blasted the composition as unbalanced: 12
government and 10 opposition. Odinga also stated that the
"50 plus one" demand is "non-negotiable and non-debatable."
This is despite what ODM leaders are saying privately that
they realize "50 plus one" is impossible, and they would
rather use that as a bargaining chip. Their priority is the
prohibition on poaching. (COMMENT: "50 plus one" is widely
considered an unrealistic demand. A united opposition could
defeat Kibaki, a chance the government is not willing to
take. Under the current system, Kibaki can win a plurality
with his ethnic support base which comprises more than 30
percent of Kenya's population. END COMMENT.)

Are They For Real?
--------------


7. (C) The government's change of heart notwithstanding,
observers are not holding out for meaningful reform before
the election. The International Commission of Jurists'
Monica Mbaru thought the government and opposition might work
out a "gentleman's agreement" which is not legally binding
but does show an attempt at reform. For example, they may
resolve that parliament can take over setting its own
calendar from the executive. Mbaru remarked that the debate
is confined to the political class, with the general public
fatigued of the issue. Civil society is also "hands off"
compared to its partisan involvement before and during the
2005 referendum, she added. Poll results support Mbaru's
observation. A year after the 2005 referendum only 2.6
percent of respondents indicated that constitutional review
was the most important issue the government should address.
Even Muite was not inspired by the government's overtures.
During a breakfast meeting with the Ambassador, Muite applied
to the reform process a common criticism of Kibaki: the
President is for it, but he is "overruled by his ministers."

Comment: The Government Pulls a Fast One
--------------


8. (C) The government has undermined a key aspect of ODM-K's
election strategy. Demanding reforms was a way for the
opposition to call the Kibaki administration to task for
failing on one of its 2002 election promises, and gave the
half-dozen strong personalities vying for the ODM-K nod for
president something to focus on besides each other. With the
government now appearing to be in front on the constitutional
review issue, and in the driver's seat with regard to
actually delivering, they stand to come out of the process
looking good. All the government has to do to successfully
steal this issue from the opposition is look like it
delivered on something, even if it really is the bare
minimum. END COMMENT.
RANNEBERGER