KENYA'S ELECTORAL CRISIS - STATE OF PLAY AND NEXT STEPS

C O N F I D E N T I A L SECTION 01 OF 03 NAIROBI 000380

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E.O. 12958: DECL: 02/05/2018
TAGS: PREL PGOV PHUM KE
SUBJECT: KENYA'S ELECTORAL CRISIS - STATE OF PLAY AND NEXT STEPS

REF: A) NAIROBI 357 AND PREVIOUS

B) NAIROBI 370 C) NAIROBI 371 D) NAIROBI 378

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


1. (C) Summary. Having reached agreements regarding
violence and humanitarian issues, the Annan-mediated talks
between the government and ODM today started focusing on
elements of a political solution. Annan wants to achieve
this by February 13. The two sides start this discussion
with diametrically opposite positions. Odinga told us his
bottom-line is power sharing involving him (coupled with
institutional reform) that could leave Kibaki in office for
his full five-year term. The government continues to insist
that the ODM should go to the courts to challenge the
elections results. We remain intensively engaged with both
sides to press for a political solution. As early as the
next few days the talks could reach the crunch point at which
the two sides will be faced with fundamental decisions in
order to work out a deal - or not. Annan will probably have
to intervene to bridge the gap. U.S. support for Annan and
intervention with both sides will be essential to bring about
an acceptable outcome to the talks. End summary.

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Talks Now Focusing on Political Issues
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2. (U) Following agreements on cooperation to end violence
and on humanitarian assistance (refs B and C) the talks
between the government and ODM today began to focus on
political issues. The two sides will discuss the disputed
election and ways to achieve a political solution.


3. (C) The two sides start the discussion of a possible
solution with almost diametrically opposite positions. The
government, publicly and privately, continues to insist that
ODM should go to the courts to challenge the election
results. ODM maintains that the judicial system is not
sufficiently independent or credible for this purpose. (This
is an assessment we share.) Government sources have
indicated to us that its fallback position is to incorporate
five to ten ODM members as ministers (which ministries is not
specified),with others to receive positions ranging from
assistant ministers to permanent secretaries.


4. (C) The ODM will start the talks on a political solution
by insisting either that there be a forensic audit and
recount of the votes (with Kibaki agreeing to step down if
the recount comes out in Odinga's favor),or that there be a
rerun within a few months following revamping of the
electoral commission. Odinga told me today that he does not
expect the government to accept either of these options.
Odinga's fallback position is meaningful power-sharing. His
initial position on this will demand power-sharing as part of
a "transitional government." This transitional government
would remain in place long enough to carry out institutional
reform (constitutional, electoral, land, devolution of
authority to local government, equitable distribution of
resources, and other issues). At the end of this process
(within 1-3 years) there would be a new election.


5. (C) However, Odinga indicated to me today that his
ultimate bottom-line can, in effect, accommodate Kibaki as
President for his full term. Odinga made clear he realizes
that anything less would not be saleable to Kibaki and his
Kikuyu supporters. In order to do so, there would have to be
a serious power-sharing arrangement, including Odinga in the
government. This would require a constitutional amendment to
establish a strong executive prime minister position for him.
Odinga said he will have difficulty selling to his people
any agreement that leaves Kibaki in place for his full term.
This can be finessed, Odinga said, by indicating that the
transitional government will remain in place for as long as
the reform process takes, which could be the full five years
of Kibaki's term. Sally Kosgei, a member of the ODM's
negotiating team, confirmed to me last night that Odinga had
told her this is his bottom-line.


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6. (C) Odinga told me he has developed a high regard for
Annan, particularly because he has been impressed by Annan's
firmness in the talks. Odinga plans to share his bottom-line
with Annan. I reiterated the Secretary's message to Odinga
on our strong support for Annan and the eminent persons.


7. (C) Meanwhile, Odinga remains deeply skeptical that
Kibaki and his team are prepared to consider meaningful
power-sharing. As the members of Odinga's negotiating team
have told us, government team leader Martha Karua has been
very hardline in the talks. "She behaves like a prefect,"
Kosgei said, "and is deliberately argumentative on every
point." Privately in the talks and publicly (most recently
in Kibaki's remarks at the AU),the government continues to
argue that the only constitutional mechanism to resolve the
electoral dispute is for the ODM to challenge the results in
court. The government continues to maintain that any
political solution must be consistent with the existing
constitution (which does not provide for an executive prime
minister). Odinga and his team are also concerned that the
government's rejection of Annan's choice of Cyril Ramaphosa
to be chief mediator is intended to delay or even scuttle the
talks. The ODM feels Kibaki is seeking to bolster his
position and move ahead unilaterally. The visit of IGAD
foreign ministers set for February 6 and the East African
Community summit set for February 8 are seen as part of that
effort. (FM Wetangula told me today that both meetings are
at the insistence of Kenya's neighbors, and are intended to
highlight the impact on the region of the continuing crisis
and to lend support to efforts to resolve it.) Finally, the
ODM says it has heard that Kibaki could within the next
several days announce the remainder of his cabinet.

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Annan Sees Progress But Tough Days Ahead
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8. (C) When I met with Annan on February 4 he was pleased
with the agreements on violence and humanitarian issues, but
previewed a rough few days ahead during the talks on
political issues. Annan expressed exasperation over the
government's rejection of Ramaphosa. He did not yet seem to
have alternative candidates. During a phone conversation
February 5, Annan told me he was surprised by the
announcement of the IGAD foreign ministers' visit and East
African Community summit. He sees them as distractions from
the talks, but is not overly concerned. He views the ODM's
statement today threatening more mass action if these events
take place as an over-reaction. In order to provide maximum
support for the talks on a political solution, he has asked
Graca Machel and Mkapa to come back. Annan is determined to
hold the two sides to the time frame for the talks he
announced on February 1: to complete discussions of political
issues by February 13, and then to move onto discussion of
longer-term issues (institutional reforms). Annan had been
planning to leave towards the end of the week once the chief
mediator was in place (and then returning as necessary),but
it seems likely that he will now stay longer given his
obviously strong commitment to achieving a successful outcome
in the talks.

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State of Play and Next Steps
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9. (C) One of the key questions with respect to moving the
talks ahead is how engaged Kibaki is in directing his
negotiating team. Odinga meets with his team each morning to
give them guidance. His and our understanding is that it is
principally Karua who sees the President about the talks,
though how often is not known. As with so many other issues,
it is unclear to what extent the President is engaged on the
substance of the talks. Virtually everyone within Kibaki's
inner circle maintain hardline positions, so it seems
doubtful that Kibaki is getting balanced counsel aimed at
achieving a political solution. (Kibaki has his own views,
however, and some of them are hardline as well. As
previously reported, he told me during our last meeting that
he could not imagine having a government that included

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Odinga.) Annan shares this concern, and so has insisted that
he regularly brief Kibaki and Odinga directly, including
during joint meetings


10. (C) Although it remains to be seen whether and how the
agreements to end violence and on humanitarian issues will be
resolved, the lifting of the ban on live media coverage which
has just been announced is a positive sign. If the two sides
move quickly to carry out the other steps in the agreement,
such as holding joint rallies against violence, this will
help build confidence and make the context more positive for
the talks on a political solution. (Ending violence will,
however, be at best a gradual process over the coming weeks
and months. Ref A reports troubling indications of
continuing organization of violence. Septel provides a
security update.)


11. (C) To support efforts to end violence (and therefore
reinforce progress in the talks),I have publicly made clear
that those involved in perpetrating, organizing, inciting, or
supporting violence will potentially be subject to visa
restrictions. Ref D reports on follow-up letters that we
have sent to eight individuals (on both sides). Annan
welcomed this step and said he appreciates my continuing
efforts with the media. We have also made clear to both
sides that failure to cooperate to achieve a political
solution will negatively affect their relationship with us.
Apart from bilateral implications, we have highlighted the
point that Kenyan failure to work out a solution will
inevitably lead to greater international involvement (as
foreshadowed by the increasing UNSC focus on Kenya).


12. (C) We have reiterated our offer to the government to
provide FBI assistance in the investigations of the recent
murders of two ODM parliamentarians.


13. (SBU) We are moving ahead to fund several civil society
projects to promote dialogue, and we are working closely with
the Speaker of the Parliament in his efforts to promote
dialogue among parliamentarians and outreach by them to their
constituents to urge an end to violence.


14. (C) Within a matter of days the talks between the
government and ODM could reach the crunch point with respect
to a political solution, with the ODM's bottom-line on
power-sharing on the table. Currently, it seems doubtful
that the two sides will be able to bridge their positions on
power-sharing. The government, at this point, is taking the
harder-line position. Annan may be forced to craft a
compromise and/or exert pressure on the government to
accommodate something along the lines of Odinga's
bottom-line. Odinga's participation in Kibaki's government
will likely be the ultimate sticking point. Although they
were allies during the 2002 elections, the 2005 referendum
and the current elections imbroglio have engendered
deep-seated animosity. A power-sharing agreement that does
not involve Odinga in the government would be hard to sell to
the half of the country that supported him and feel the
election was stolen. A credible political solution is the
only way to fully restore peace and stability, and to lay the
basis for reconciliation and to address underlying grievances.


15. (C) U.S. intervention with Kibaki and Odinga -- in
coordination with Annan -- will be essential to help forge a
solution. In that regard, the Secretary's direct contacts
with Kibaki and Odinga have been extremely helpful to keep
the talks energized. We will keep the Department closely
informed as the talks unfold.
RANNEBERGER