KENYA ELECTIONS: ELECTORAL COMMISSION CHAIRMAN

UNCLAS NAIROBI 004097 SIPDIS SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PREL KDEM PGOV KE SUBJECT: KENYA ELECTIONS: ELECTORAL COMMISSION CHAIRMAN SPEAKS OUT REF: A. NAIROBI 3998 AND PREVIOUS ¶B. NAIROBI 1669 ¶1. (SBU) Summary and Introduction: The Electoral Commission of Kenya (ECK) Chairman Samuel Kivuitu recently prepared a speech on the theme "Election 2007: Can Kenya Remain a Model for Africa?" The speech was delivered to the Kenya Alliance of Resident Associations by Kivuitu's deputy, as the Chairman was ill. The speech was characteristically frank and critical. Kivuitu took a swipe at the Attorney General's office for its attempts to curb the ECK's ability to sanction wayward political actors and civil servants, and its refusal to take any action of its own to promote correct democratic practice. The speech is repeated here in its entirety. Kivuitu's tenure ends on 2 December, just prior to the elections. Kibaki made private assurances that the contracts of Kivuitu, his Vice Chair and the six commissioners whose terms expire at the end of October would all be renewed to allow for continuity during the election period. However, following those assurances, the Vice Chair's contract was allowed to expire and the President then named another new commissioner. This is a bad omen as regards the fate of the other veteran commissioners. We have emphasized in public and private messages the importance of continuity of ECK leadership. We and other election process donors are developing a contingency plan to fill the breach should we become convinced that the ECK will not perform its proper role. End Summary and Introduction. Election 2007: Can Kenya Remain a Model for Africa? -------------- -------------- ¶2. (U) Kivuitu's speech as written follows: "True the way we as Kenyans conducted ourselves during the 2002 general elections won applause from many sources all over the world. I agree we did well as a nation but was that because we had become better democrats or it was just luck? (God smiled at us and we obliged!). I have tried hard to fathom out which of the two was the case (or indeed a combination of the two) but I regret I have been unable to find the answer. ¶3. (U) Look at the matter from all perspectives. Kenyans are still tribialist in a very negative way. They still embrace election violence. Voter bribery is still rampant. Misuse of State resources for electoral victory is still the order of the day. Indeed there is reason to feel concerned that public officers will be used to exploit their privileged positions in order to advance the election cause of some of those in power. The Electoral Commission is not truly a reflection of this nation in terms of composition and the manner it is constituted. ECK's security of tenure is illusory. Political parties have very little chance to compete fairly. In any case their registration can still be used as a tool against fair competition at election time. All these grave weaknesses have the capacity to derail, to imperil, our progress towards democracy. Until theses are resolved in a manner that supports the pursuit for democracy our claim, in my view, that we are a a democracy or that the 2002 general elections put us there is fictitious. Just as we have improved with regard to our respect for freedoms which go with democracy we must take steps to correct these grave deficiencies. The potential is there for us to achieve success in these fronts because the current Government does indeed give hope in that direction and the people of Kenya are now far much more enlightened about their political and economic rights and have displayed keen interest to protect, safeguard and advance these rights. Indeed the coming general elections promise to provide a true barometer as to how far we have moved towards the democracy destination. ¶4. (U) ECK is well prepared to conduct these elections, thanks to the Government's generous support and that of friendly donors like UK, US, Germany, Netherlands, Norway, Denmark, Canada, Australia, Finland, Sweden, through the United Nations Development Programme (UNDP). The reappointment of the Chairman, the Vice Chairman, and other seasoned commissioners of the ECK should not cause too much concern since I believe the Government has no intention to rock the boat. My interaction with higher authorities has convinced me that all will be well in the end. Indeed H.E. the President is clearly focused on what he expects at election time i.e. peace and tranquillity with properly managed elections. Many of the members of the ECK are ready and willing to go the extra mile to maintain electoral discipline within the political parties, their candidates and supporters even if it appears to exceed its restricted mandate. It will rely on the provisions of section 42 A of the Constitution of the Republic which empowers it to promote free and fair elections. These provisions must be given a meaning. They must be made to prevail. Let the judiciary condemn ECK for this attitude which it proposes to assume. ECK will not purport to be the judiciary and limit or restrict its mandate. That will be left to that learned and esteemed institution to judge. ECK should adopt the proactive posture that has made the Indian Electoral Commission (with the full support of the Supreme Court of India) rein in politicians and civil servants. That Commission is a model election management body (EMB). ECK should emulate it. Our judiciary should also learn from the Supreme Court of India. Ghana and South Africa are other nations with EMB's to emulate. Democracy is not realizable without a strong and supportive judicial bench. ¶5. (U) ECK would like to appeal to Kenyans to abandon negative tribalism, election violence and voter bribery. Negative tribalism is repulsive. It can never support democracy. It leads voters to choose useless leaders just because they are our own. Useless leaders will always be a curse to a country. God brought us all to this beautiful land to live together. Tribialists commit the heinous crime of contempt of our great God when they appear to challenge His arrangements and schemes. Election violence is painful - it hurts democracy severely. So is bribery. All these vices lead to the election of inefficient, ineffective and bogus leadership. Any politician who advocates or practices any of these vices should be avoided like a witch. ¶6. (U) ECK earnestly urges Kenyans to support its efforts to conduct the elections fairly and freely, competently and efficiently. All registered voters have a duty to vote out useless leadership and to elect leadership that is honest and democratic -- leadership that will bring about stability, unity and prosperity." Comment: Seeking ECK Continuity, But Contingency Plans Afoot -------------- -------------- ¶7. (SBU) Kivuitu is the real deal. He sincerely believes in a fair and transparent administration of the electoral process. That said, the ECK is largely toothless, and Kivuitu is in ill health. During the pre-electoral campaign period, it has no official standing to curb abuses. Once the official campaign begins, upon the formal dissolution of parliament, ECK has more authority and receives a detachment of police to enforce its dictates, but is still hampered by an ill-defined role in sanctioning campaign abuses. On election day itself, the ECK has been able to enforce balloting rules, and did so credibly in the most recent general election and subsequent by-elections. The ECK makes decisions by consensus. The Chairman is merely prima inter pares. ¶8. (SBU) An agreement between the opposition political parties (including Kibaki's Democratic Party) and the then ruling party in the run up to the 1997 elections called for naming ECK commissioners through an informal consensual process. This agreement was never codified in law. Kivuitu was appointed to ECK under this consensual procedure, which the Moi regime faithfully observed. However, under the law, the President has sole authority to name members of the ECK, who then serve for a fixed period by contract. President Kibaki has appointed several new commissioners over the last year without inter-party consultations, thereby observing the letter of the law but ignoring the inter-party handshake agreement that he had helped negotiate when in the opposition. The most recent by-election, in March 2007, was handled in a responsible manner, but some observers worry about Kivuitu's ability to maintain ECK's high standards during the upcoming general election given the very high stakes and the majority of unilateral Kibaki-appointed ECK commissioners. Recently, the Vice Chairman's contract was allowed to expire. The President then named another new commissioner. ¶9. (SBU) Ref B details USG support to the Kenyan electoral process, including strengthening of the ECK. We have emphasized in public and private messages the importance of continuity of ECK leadership. We are developing a contingency plan along with other election process donors to fill the breach should we become convinced that the ECK will not perform its proper role. SLUTZ