KENYAN ELECTIONS - WORKING FOR A POLITICAL

C O N F I D E N T I A L SECTION 01 OF 06 NAIROBI 000013

SIPDIS

C O R R E C T E D C O P Y (TEXT THROUGHOUT, AU COLLECTIVE ADDED)

SIPDIS

FOR S, D, P, G, R, DS, DRL, AND AF A/S FRAZER FROM THE
AMBASSADOR

E.O. 12958: DECL: 01/02/2018
TAGS: PREL PGOV PHUM ASEC KE
SUBJECT: KENYAN ELECTIONS - WORKING FOR A POLITICAL
SOLUTION AMID VOTING IRREGULARITIES AND VIOLENCE

REF: (A) 2007 NAIROBI 4830 (B) 2007 NAIROBI 4832

(C) NAIROBI 1 (D) RANNEBERGER/FRAZER TELCONS DECEMBER 27 - 31
AND JANUARY 1 (E) RANNEBERGER CONFERENCE CALLS WITH AF AND
NSC DECEMBER 29 AND 31 (F) NAIROBI 12 AND PREVIOUS

NAIROBI 00000013 001.2 OF 006


Classified By: Ambassador Michael Ranneberger for reasons 1.4 (b,d)


1. (C) Summary. The electoral process in Kenya turned violent
in recent days following the Electoral Commission's December 30
declaration of President Kibaki as the winner despite very serious
irregularities in the vote tabulation process. Despite
intense electoral observation by the U.S. and others, the vote
tabulation at the Commission's headquarters was not fully
transparent and there were substantial anomalies with respect
to vote totals announced. In an effort to stem violence
following the Commission's announcement, the government restricted
live television news coverage, which we have condemned and are
pressing to reverse. Serious violence has rocked some major
urban areas, including parts of Nairobi. Although the
situation is now relatively calm, a rally planned for January
3 by Raila Odinga, the losing presidential candidate, will
likely lead to more violence. The government has banned the
rally. Both the Kibaki and Odinga camps believe that they
do not need to compromise and that time is on their side.
Kibaki and his team feel that the police and security
forces can restore normalcy, and that he can cobble together
a credible cabinet without Odinga. Odinga, on the other hand,
believes that he can make the country ungovernable and count
on international support to force Kibaki to resign. There are
deep ethnic tensions between Kibaki's Kikuyu and Odinga's Luo
tribes, and a wide political divide between the two. However,
Kenyans across the spectrum have been shocked by the violence and
are coming to the realization that there must be a political
accommodation between Kibaki and Odinga in order to restore
normalcy and move the country forward. The U.S. is Kenya's
most important international partner and is seen as neutral,
and thus uniquely positioned to support Kenyan efforts to resolve
this crisis. We are working the media intensively to urge peace
and a political settlement. We are in touch with Kibaki, Odinga,
and their teams, as well as a wide range of influential players
to facilitate dialogue. End summary.

--------------
Irregularities in Vote Tabulation
--------------


2. (C) As previewed in ref B, much can happen between the
casting of votes and the final tabulation of ballots and it did.
This message recaps developments reported in refs, provides current
state of play, and discusses next steps. Much of our reporting
during the past three days has been done by phone given our
intensive focus on operational issues, particularly efforts to
promote a positive outcome to the election imbroglio.


3. (C) Elaborate procedures were in place (much of it with U.S.
support) to ensure transparency and accountability of the ballot
tabulation process. That process involved three steps: counting at
each polling station witnessed by observers and political party
agents and the public posting of those results; tabulation of
polling station results at a central tabulation facility in each
of the 210 constituencies also to be witnessed by observers and
party agents; transmission of those central tabulation results by
phone and computer, and the physical delivery of the tabulation
forms with the results to the ECK, also to be witnessed by
observers and party agents. It was expected that these elaborate
procedures would require at least two days to complete. The ECK was
legally required to announce final results by cob on the 30th.


4. (C) By the 28th tensions were already mounting within
both Kibaki's Party of National Unity (PNU) and Odinga's
Orange Democratic Movement (ODM) as a result of delays in
reporting results and allegations of irregularities in the
tabulation process. Septel will analyze these allegations
and our assessment of the tabulation process. In essence,
ODM claimed that delays were deliberate as election officials
doctored results. PNU officials made counter claims. Each
side raised with the ECK and with observers specific
allegations. These included, among others, unrealistically

NAIROBI 00000013 002.2 OF 006


high voter turnout in some areas and tabulation forms altered
after being announced at tabulation centers and before final
announcement at the ECK.


5. (C) ECK officials and observers pursued these
allegations to some extent, but the ability to do so was
constrained by lack of time, original data from polling
stations, and by the behavior of a number of ECK officials
who delayed returning results and submitted incomplete or
clearly altered documentation. Moreover, the ECK has no
authority to open ballot boxes; only the courts do. During
the night of Dec. 29, ECK officials together with
representatives of the PNU and ODM, reviewed the tabulations,
but neither side was satisfied that the review had fully
addressed their concerns. The ECK partial review of the
irregularities was also of questionable credibility, given
that all of the commission members were appointed by the
Kibaki government, and a number of them were suspected of
being clearly biased and/or involved in doctoring at ECK
headquarters. The Chairman of the ECK, Samuel Kivuitu, who
was widely respected, was surrounded by staff of uncertain
reliability and competence. It is worth noting that
parliamentary results were not disputed because they were
tabulated and announced at constituency tabulation centers,
thus allowing no interference at ECK headquarters.


6. (C) Kivuitu has only limited authority as head of the
ECK. The ECK works on a majority vote system. It is also
important to note that the ECK is required by law to announce
the results as received at the ECK from the tabulation
centers. Some obvious irregularities like reporting
unrealistically high turnout or clearly altered results can
be rejected. There was, however, only a rejection of the
results in one constituency in which violence resulted in
destroyed ballots. Other alleged irregularities, such as
announcing results that ECK personnel personally inflated
should have been, could have been, but were not corrected. At
one point Kivuitu told me that his concerns about the
tabulation process were serious enough that "if it were up
to me, I would not announce the results." In the end, he
participated with other commissioners in an announcement late
on the 30th, which turned rowdy when Odinga walked with armed
bodyguards into a room packed with observers, including me,
party agents, and media. Kivuitu and the other commissioners
retreated to their upstairs offices, where the results were
announced. Kibaki was quickly sworn in (this was
constitutionally necessary since his term ended at midnight
on the 30th).


7. (C) My team and I, as well as the head of the EU
observer mission, were at the ECK vote tabulation center
throughout the tabulation process, and aggressively
intervened with Kivuitu and other commissioners and staff to
work for transparency. Our judgment is that the tabulation
process was seriously flawed but, without having direct
access to polling station numbers and doing a polling-station
based recount, it is impossible to determine which candidate
actually received the most votes. We had consistently
predicted a close election. There were accusations of
serious irregularities with respect to about 20 percent of
the 210 constituencies. Some ECK insiders have alleged that
the purpose of the delay in announcing the results in some of
the constituencies was to determine the true count and then
re-jigger in a manner to make up gaps in votes for Kibaki.
Announced results differed from results initially received by
ECK from the tally centers. We have seen documents that
illustrate this. In a close election, with Kibaki winning by
about 230,000 votes, such irregularities may have been enough
to make a difference. At the polling center level there were
also anomalies on both sides. While Odinga claims he was
cheated, it is also conceivably possible that Kibaki would
still come out ahead if all the irregularities were sorted
out and a full recount carried out.

--------------
Violence
--------------


NAIROBI 00000013 003.2 OF 006



8. (C) Serious violence broke the evening of the 30th (see
septel on security situation). This included riots in the
Nairobi slum areas and in two other neighborhoods, as well as
riots and looting in other areas that had supported Odinga,
including Kisumu, the capital of his native province of
Nyanza. Violence then spread to other areas, particularly
Rift Valley. The capital of that province, Eldoret, was
particularly affected. For the most part, the violence has
involved Odinga,s Luo supporters in Nyanza and Kalenjin
supporters in Rift Valley attacking Kikuyus, Kibaki,s tribe
and the principal supporters of the PNU. At least 75,000
people have been internally displaced with at least 200
killed. This is not Rwanda-style mass killings, but rather
targeting of Kikuyu homes and businesses in an effort to
force Kikuyus to leave the Nyanza and Rift Valley areas and
return to the Kikuyu-dominated Central Province.


9. (C) Police forces are fully deployed, but somewhat
overwhelmed. This is partly because police forces were
scattered across the country, as the law required that 2
police officers be at each of the 27,000 polling stations.
About 500 police were airlifted to reinforce the police in
Eldoret. The military has not been deployed and remains in
the barracks. (We have just learned, however, that military
units will soon be deployed to clear roads of abandoned or
damaged vehicles in order to restore normal traffic.) No
state of emergency or martial law has been declared, although
there is a dusk to dawn curfew in Kisumu. As a result, the
situation there is now relatively calm. There are
unconfirmed reports that the Kikuyu militia known as the
Mungiki (essentially a mafia-style organization primarily
involved in criminal activity) might be mobilized to defend
Kikuyus and/or retaliate against Luos and Kalenjins.
Overall, however, as of January 2 a tense calm prevails in
most areas.

--------------
The Media Role and Restrictions
--------------


10. (C) The media did a superb job on election day and
throughout the vote tabulation process with highly
professional 24-hr coverage (Kenya recently won an award for
having one of the most free medias in the world). When
violence erupted, however, the government, using an obscure
1998 law, banned all live television coverage. Although we
have been told that this was subsequently modified to
restrict only live coverage of violence and hate speech, the
television stations continue not to air live broadcasts. We
have condemned the restrictions on the media. A senior
government official has indicated he expects the restrictions
to be lifted soon.

--------------
The U.S. Role and Way Forward
--------------


11. (C) We worked intensively to press for a transparent
tabulation process. This included round-the-clock presence
at tabulation headquarters, close review of the tabulation
itself, liaison with the political party agents, and
extensive discussions with the electoral commissioners and
staff. Throughout the process we made clear our strong
support for Electoral Commission Chairman Kivuitu. As
indications of serious irregularities mounted, we urged
Kivuitu to delay announcing final results in order to conduct
a more extensive review of the anomalies, and said that we
would stand by him if he chose to do so. We closely
coordinated efforts with the UK and with the EU election
observation mission. At one point on the day he announced
the results, Kivuitu told me "if it were up to me I would
not announce the results." Nevertheless, late on the 30th
Kivuitu announced final results showing Kibaki the winner.
Several electoral commissioners have subsequently appeared in
the media stating that they take responsibility for not
having more closely scrutinized the vote tabulation process.
On January 1, Kivuitu appeared on television to say that "I
was pressured into announcing the results by people in State

NAIROBI 00000013 004.2 OF 006


House who God should never have allowed to be born."
Interestingly, Kivuitu defended Kibaki as not having been
involved, and Kivuitu did not say that he believed the
irregularities meant Odinga had won. "I don't know who
won," he said, and this has made local headlines.


12. (C) As noted in ref B, the U.S. is uniquely positioned
to promote a political settlement. We are Kenya's most
important partner, and we are seen as neutral, whereas the UK
is seen as clearly pro-opposition and relatively anti-government.
That we are perceived as such is evidenced by the fact that we
have, since the election crisis began, been approached by
literally hundreds of Kenyans urging us to help facilitate a
solution. We have been working along two lines. First we are
making clear publicly the need to respect the rule of law, urging
an end to violence, and emphasizing the need for a political
settlement (see ref C for text of our formal statement). In
that regard, I have been working the media intensively,
including print, radio, and television, and we have received
very positive feedback on that. Second, we are working to
facilitate dialogue between the Kibaki and Odinga camps in
order to achieve a political settlement. During the past 3
days I and my team have met with dozens of key interlocutors
and talked on the phone with dozens of others.


13. (C) Kibaki and Odinga are, in some respects, in similar
positions. Both are surrounded by a number of hard-line
people who see the current situation as winner take all.
Both believe that time is on their side. Kibaki and his team
believe that forceful action will stop the violence within a
few days, with relative normalcy returning by this weekend.
Odinga, in their calculation, will then be left with no
option other than to accept the election result. They have a
clear game plan that involves, among other elements:
immediately co-opting elected ODM members of Parliament in
order to cobble together a PNU parliamentary majority; getting
Kelonzo Musyoka (the third presidential candidate of ODM-K)
to accept the vice presidency; going ahead with the naming of
a cabinet that will include Luo and other groups as well as
Kikuyu; not putting into force legislation that would require
consultation with the opposition before parliamentarians can
be poached; establishing a national commission to address the
problem of tribalism (previous commissions on sensitive
issues have generally faded away without real results); and
rejecting any attempt for international mediation. Odinga, on
the other hand, believes that he can make the country
ungovernable and that the Kikuyu business community will,
within a couple of weeks, then pressure Kibaki to step down
in order to prevent the ruin of the country. We have been
reliably told that Odinga is basing his strategy on a mass
action approach similar to that carried out in the Ukraine.
Clearly, the dynamics in Kenya are dramatically different,
and that approach will not succeed here, at least not
without considerable loss of life. Odinga is also counting
on international pressure on Kibaki to give Odinga leverage
and force Kibaki to step down.


14. (C) I am underscoring to both sides that their
respective approaches are unrealistic and dangerous, and
threaten even greater bloodshed. There are some indications
the extent and brutal nature of the violence has sufficiently
shocked Kenyans across the spectrum so that there is an
emerging realization there must be a political solution.
(Kenyans from the ordinary citizen to the elite have also
been deeply shocked by the violence. "This is not the Kenya
I know" is a constant refrain.) I am in close touch with a
group of Kikuyu businessmen who want to work out a solution.
I am also in close contact with members of Odinga's inner
circle who want to see a deal worked out. We are
facilitating contacts and helping pass messages.


15. (C) At this point, however, the bottom lines are still
very far apart. Odinga is insisting that Kibaki lost the
election. He is demanding a transitional government for four
months, during which the independence and competence of the
electoral commission would be strengthened, with new
elections then held. Odinga is also insisting on a Kibaki
commitment to constitutional reform and on a commitment to

NAIROBI 00000013 005.2 OF 006


implement the law requiring that opposition parties must be
consulted before any of their parliamentary deputies can be
offered ministerial positions (poaching in order to undermine
parties was a huge problem during the last parliament).
Kibaki's inner circle says that accepting Kibaki as
president for his full term is a sine qua non for any
political deal.


16. (C) I have floated with both sides the possibility of
forming a government of national unity, which could include
Odinga as vice president or as prime minister, a position
which would have to be created. Odinga could be given
leadership of constitutional reform (both sides agree on the
need for such reform). While each side is resisting moving
from their declared positions, changing dynamics and mounting
pressure on both may provide openings for progress in the
coming days. On Kibaki's side, some are worried about the
level of violence and the Kikuyu business elite are gravely
concerned about the negative impact on their business
interests. Odinga's side is also concerned about containing
the violence, particularly since it is starting to rebound
against them, with some in Nyanza and Rift Valley now asking
"how many more people must die in order for Odinga to become
president." Odinga's people also realize that it will be
difficult to force Kibaki from office. (The quiet posture of
the military also encourages a solution: the leadership of
the armed forces is professional and has made clear they do
not want to be drawn into violence that has been spawned by
politicians; however, the leadership is also largely Kikuyu
-- and Kamba their traditional ally -- and will not want to
see Kibaki forced from office.)


17. (C) Although he only garnered about 9 percent of the
popular vote, the third presidential candidate, Kalonzo
Musyoka, is well-positioned to play a pivotal role in working
out a political settlement. Kibaki has offered Musyoka the
vice presidency. Musyoka told me, however, that he will only
accept this if Kibaki also cuts a deal with Odinga to bring
him into the government (perhaps as prime minister).
Although Musyoka's Kamba tribe is seen as an ally of
Kibaki's Kikuyu, naming Musyoka would give some semblance of
coalition to the government. How long Musyoka will hold out
as leverage to get a deal between Kibaki and Odinga is
unclear. If Odinga continues to refuse to deal with Kibaki,
Musyoka may move to accept the vice presidency, arguing that
Odinga is being unreasonable.


18. (C) Although some have suggested the need for outside
mediation, Kenyans have always been able to resolve their
problems themselves. They tend to resent outside
interference. Odinga is welcoming the idea of international
mediation, because he believes it will create pressure on
Kibaki to step down. Any outside intervention will have to
be carefully orchestrated to ensure it does not inadvertently
encourage Odinga to delay coming to grips with a political
settlement, or cause the Kibaki camp to entrench further.
We understand that AU Chairman Kufour has asked to visit
Kibaki in order to help calm the current situation and to
encourage a political solution. Achieving that will require
intense pressure on both Kibaki and Odinga, and continued
close work with the people around them.


19. (C) Finally, I commend my team for having done a superb
job throughout the holiday season to support U.S. efforts and
to work the issues at all levels. Together we are exerting
strong leadership to help Kenyans resolve this crisis.
There are a number of factors which make me cautiously
optimistic that they will succeed. These include, among
others, the enormous democratic space that has opened up
since the 2002 elections, the history of the 42 tribes of
Kenya managing to work together despite problems, the vested
interest that so many Kenyans have in the economic growth
they have experienced, the fact that Kenyans are the most
literate people on the continent, their vibrant civil society
and media, and the relative strength of many of their
institutions.


20. (C) That said, as history has demonstrated any number

NAIROBI 00000013 006.2 OF 006


of times, (including in the U.S. after the assassination of
the Reverend Martin Luther King when U.S. cities went up in
flames) all societies are vulnerable to the unthinkable when
there are long-standing, unresolved ethnic and racial
grievances. In that context, ethnic divides between the Luo
and Kikuyu run deep. Odinga is demonized by hard-liners in
the Kibaki camp as being responsible for attempted genocide
during the current violence despite his public calls for
peace. Hard-liners in the Odinga camp encourage ethnic
hatred of Kikuyus. Despite these ethnic tensions, and the
fact that Kibaki and Odinga are still dug in to unrealistic
political positions, Kenyans are waking up to the harsh
reality they are witnessing. They seem increasingly
determined to press for resolution of this crisis in a way
that will continue to move the country forward. They are
proud that Kenya has been held up as a democratic example for
others and determined to recapture that standing. If Kenyans
can work through this crisis on their own, with some
assistance from us and other friends - they will emerge as a
stronger democratic society.
RANNEBERGER