INDEPENDENT REVIEW COMMISSION SET TO BEGIN REVIEW

UNCLAS SECTION 01 OF 02 NAIROBI 000869 SIPDIS SIPDIS E.O. 12958: N/A TAGS: PREL PHUM PGOV KDEM KE SUBJECT: INDEPENDENT REVIEW COMMISSION SET TO BEGIN REVIEW OF 2007 ELECTIONS: ECK FEELING THE PRESSURE REF: NAIROBI 792 -------------- SUMMARY -------------- ¶1. As part of their historic February 28 power-sharing deal, the Party of National Unity (PNU) and Orange Democratic Movement (ODM) agreed to form an Independent Review Committee (IREC) to undertake a top-to-bottom review of Kenya's flawed 2007 elections. Commissioners and a Chair, South African judge Johan Kriegler, have been selected and began work on March 20. Quick action to form the IREC bodes well for Kenya's efforts to deal seriously with the causes of the recent crisis, but key issues remain to be resolved, such as the rules of procedure and the level of transparency of decision-making within the Committee. The resolution of these will, in large measure, determine whether IREC can fulfill the high expectations of the Kenyan public to get to the bottom of the 2007 elections and deliver recommendations for real change. Of more immediate concern, however, is whether IREC will somehow force the resignation of the discredited Electoral Commission of Kenya (ECK) before six parliamentary bi-elections are to be held. End summary. -------------- -------------- The Independent Review Committee - up and running -------------- -------------- ¶2. IREC is a mixed, non-judicial body comprised of seven Commissioners - four Kenyans and three internationals. The Chairman of IREC, Johan Kriegler, is a judge and former head of the South African Electoral Commission. In that capacity, he oversaw South Africa's first post-apartheid elections. He later worked as an adviser to Sierra Leone's Electoral Commission. PNU and ODM each nominated two of the Kenyan commissioners. The parties agreed on Justice Imani Daudi Aboud, a Tanzanian Judge and Horacio Boneo, an Argentine electoral expert, to round out the commission. Kriegler arrived in Nairobi on March 19. He and the other Commissioners were sworn in by Kenya's Chief Justice on March ¶20. ¶3. IREC is tasked to undertake a comprehensive review of the flawed 2007 elections. This includes identifying weaknesses and inconsistencies in Kenya's electoral legislation, and investigating all aspects of the ECK's performance (including its structure, composition and management systems) during the conduct of the 2007 elections. It will propose recommendations on electoral reform, which are expected to include constitutional, legislative, operational and institutional measures. Although it has no power to punish wrongdoing related to the 2007 elections, it can propose accountability mechanisms for ECK Commissioners and staff related to electoral malpractices. IREC is expected to deliver its report to the Panel of Eminent African Personalities within 3-6 months, with publication of the report to follow within fourteen days of delivery. Under the Annan-led mediation agreement, IREC's recommendations are to be factored into long-term electoral, legal, and constitutional reform expected to flow from Agenda point 4 of the negotiations. ¶4. IREC is hiring investigators and counsel and beginning work to decide its procedural and evidentiary rules. IREC hearings are expected to be public, although the Commission has the discretion to order private hearings if needed to gather testimony or allay fears of reprisal for testimony given. The Committee will be funded by the Government of Kenya (GOK) and the Trust Fund for National Dialogue and Reconciliation, which includes support from the U.S. and other donor states. -------------- ECK FEELS THE PRESSURE -------------- ¶5. As IREC starts up its operation, the ECK is under increasing pressure. IREC has met with ECK officials to gather preliminary information on ECK's organizational structure and management systems. When its hearings begin, IREC is expected to call many, if not all, of the ECK NAIROBI 00000869 002 OF 002 Commissioners to testify regarding the elections, focusing on the tallying of the presidential election results. In increasingly strident tones, media and civil society also have called for the entire ECK to resign. ECK has resisted all such calls. ¶6. The ECK recently decamped to a five-star resort in Mombasa to conduct an in-house review of its performance in the election. This was widely interpreted as an attempt by the ECK to get its story straight before Commissioners are called to testify before IREC, according to our contacts. Coincidentally, the National Civil Society Congress (NCSC), an umbrella group for Kenyan civil society organizations, was holding a conference in the same resort. When NCSC activists learned that the ECK was in the same hotel, they stormed the ECK gathering, demanding that the ECK Commissioners resign. This caused a melee and police were called to intervene. In the aftermath, ECK Chairman Samuel Kivuitu claimed that important files went missing which would impact the Commission's ability to present evidence to IREC. (NOTE: The NCSC publicly ridiculed the disgraced ECK's expenditure of taxpayer money on a five-star hotel -- an extravagance the NCSC could only afford through all its hard-earned donor funding. END NOTE.) Later during ECK's visit to Mombasa, ordinary citizens heckled Kivuitu with demands for his resignation as he left a restaurant. The media widely covered these events, fanning already wide public resentment toward the ECK. ¶7. In another attempt by the ECK to get its story straight, the Secretary of the ECK on March 26 issued a memo ordering all Commissioners to file reports explaining their role in the tallying process. While the ECK presented this as an effort to assist the ECK in making its submission to IREC, ODM deputy leader Musalia Mudavadi stated ODM's opposition to the move, calling it an attempt to conduct a parallel inquiry. -------------- COMMENT -------------- ¶8. The quick stand-up of the IREC is an important step. The public, media, and civil society have made increasingly strident calls for the ECK's resignation due to ECK's role in the flawed 2007 presidential elections (which sparked violence causing 1,200 deaths and 500,000 displaced persons). There are grave doubts whether the current ECK has the credibility to conduct elections for the six Parliamentary seats that remain vacant. Recently, the Speaker of Parliament decided to delay issuing writs declaring the seats vacant. Declaring the seats vacant would require by-elections to be organized by the ECK within 90 days. The expected public testimony of ECK Commissioners before the IREC may determine whether the ECK in its current composition is able to conduct the by-elections. End Comment. RANNEBERGER