THE REFORM AGENDA IN KENYA: STATUS OF

C O N F I D E N T I A L SECTION 01 OF 05 NAIROBI 001267 SIPDIS DEPARTMENT FOR A/S JOHNNIE CARSON AND AF/E SUSAN DRIANO, NSC FOR SENIOR DIRECTOR GAVIN LONDON, PARIS, ROME FOR AFRICA WATCHERS E.O. 12958: DECL: 06/24/2039 TAGS: PGOV PREL KDEM PHUM PINR KE SUBJECT: THE REFORM AGENDA IN KENYA: STATUS OF IMPLEMENTATION REF: NAIROBI 1101 Classified By: Ambassador Michael E. Ranneberger for reasons 1.4 (b) an d (d) ¶1. (C) Summary. This message provides an update on the reform agenda. There is little indication that the coalition government leadership is moving towards implementation of far-reaching reforms. Establishment of a Special Tribunal is problematic. While the Task Force on Police Reform is credible and may yield significant recommendations, credible implementation of these will be virtually impossible while Commissioner Ali remains in office, and we see no movement to oust him (or the corruption-ridden Attorney General, or the Chief Justice, who is a roadblock to fundamental judicial reform). The constitutional revision process, arguably the most important element of the reform agenda, is moving ahead, but it remains to be seen whether this will result in meaningful recommendations for division of executive power and on other key issues. Parliamentary reforms are encouraging. Ref A and other reporting has laid out U.S. efforts to press for expeditious implementation of key reforms. End summary. ¶2. (C) This message provides an update on the status of implementation of key elements of the reform agenda, including, among others: establishment of a Special Tribunal, the constitutional review process, creation of an interim electoral commission, police reform, judicial reform, land reform, steps against corruption. -------------- Constitutional Revision -------------- ¶3. (C) The constitutional review process is the overarching reform agenda issue. Meaningful constitutional review is crucial to help avoid political instability. Progress on other reform agenda items will have only a limited impact without meaningful constitutional revision, and some key steps such as establishment of the permanent independent electoral commission hinge on the new constitution. Uncertainty about the future constitutional framework has also presented dilemmas in the areas of police, land, and judicial reform, as those working on these issues are concerned that, in the absence of a new constitution, any reforms undertaken in the interim will be piecemeal and inadequate. Although the constitutional revision process got off to a slow start, the coalition government has now laid out a credible timeline: a first draft on key issues by August; submission of a full draft to Parliament by December; and the holding of a national referendum by August 2010. Sticking to this timeframe is important, because if the constitution is approved (or disapproved) too late there will not be sufficient time, ahead of the 2012 elections, to implement the key provisions (or to handle the repercussions from a negative referendum vote). Despite initial problems regarding insufficient funding, the constitutional review committee of experts is now at work. The head of Parliament,s select committee overseeing the constitutional review process told us there has been no political interference in the process. The budget recently submitted to Parliament includes about $26 million to support the reform agenda. An as yet unknown portion of these funds are expected to be provided for the constitutional review process. Approximately $1.6 million has been allocated for the interim electoral commission (see below). To the best of our knowledge, there is no specific allocation in the budget for the constitutional review committee of experts. Media reports indicate that the Minister of Justice does not believe the reform agenda funding is sufficient to support needed activities and, as yet, he does not know how funds will be allocated for the various reform efforts. ¶4. (C) According to the chairman of the Select Committee and other interlocutors, the purpose of the committee of experts is to delineate the key areas for constitutional revision and to propose potential approaches. Because there have been a number of previous attempts at constitutional reform going back 15 years, there is general consensus that there is no need for another national consultative process similar to that which preceded the constitutional referendum in 2005. A &reference group8 composed of 30 civil society representatives is being established to provide views to the committee of experts. The coalition partners are also NAIROBI 00001267 002 OF 005 providing views to the committee of experts regarding the substance of constitutional revision. ¶5. (C) The committee of experts clearly hopes that the coalition partners will reach agreement on the substance of key constitutional changes, particularly with respect to issues relating to division of executive power and devolution/decentralization. The President,s permanent secretary (Muthuara) recently claimed to the Ambassador that the coalition partners have already agreed on the need to incorporate devolution of authority to local levels (septel). There is a range of other key issues, including restructuring of the judiciary to establish a Supreme Court and to make it more independent, the question of whether provisions for sharia law for Muslims will be provided for, the structure of security forces, and addressing land rights issues, among others. The most important issue, however, is the structuring of executive power. While some seek to preserve a strong presidential system, others prefer a parliamentary system. There has been significant discussion of a &hybrid8 system. However, many observers fear that there will be no fundamental alteration of the current imperial presidential system because all politicians who aspire to be president (including those on Kibaki,s side as well as Odinga and his team) do not want to inherit a less than &imperial8 presidency. In that context, it was interesting that the President,s permanent secretary said he expects the new constitution to represent merely &an improved version of what we have now8 (with respect to the balance of power between the positions of President and Prime Minister). What emerges with respect to the division of power between the President and Prime Minister will be crucial, since this &check and balance8 (or not) will determine whether the current winner-take-all approach that has led to ethnic conflict will be mitigated. ¶6. (C) We should continue to press for meaningful and timely constitutional revision, particularly with respect to executive power-sharing, detailed devolution, and a credible rule of law structure. We should also not lose sight of the fact that this is the paramount reform agenda item, alongside the Special Tribunal and the principle of accountability embedded in its implementation, and police reform. -------------- Special Tribunal -------------- ¶7. (C) The President and Prime Minister continue to declare publicly their preference for a local Special Tribunal, rather than allowing the issue to go to The Hague. Having said this, neither seems willing to push hard enough to gain parliamentary approval for the constitutional amendment needed to establish a Special Tribunal. They and the Minister of Justice claim that the bill will be reintroduced in Parliament, but the bill will likely be defeated again without a very tough push from Kibaki and Odinga -- and even that would not guarantee success. There are three other possible approaches. The government may take no action before the end of August. (Kofi Annan has indicated that he will give the list to the International Criminal Court (ICC) if the Tribunal has not been established by then.) Some observers have pointed out that the investigation and prosecution of perpetrators could be returned back by the ICC to a local Special Tribunal if it is subsequently established. Second, the government could take the position that there should be a two-tier approach: with the Waki list going to The Hague, while a local tribunal is set up to investigate and prosecute other suspects. Finally, the government could try to bypass Parliament by setting up a Special Tribunal using existing constitutional and legal authorities (as the presidency permanent secretary mooted to the Ambassador). This would not be a credible option, as it would provide the Attorney General and Chief Justice ) both key enablers of the culture of impunity ) the ability to influence the structure and work of the Tribunal. Although others have talked about a potential &hybrid8 approach along the lines of the Sierra Leone or Arusha tribunals, this has not gained much traction. ¶8. (C) The extremely divisive nature of the Special Tribunal issue has clouded the rest of the reform agenda, and will continue to do so. With Minister of Finance Uhuru Kenyatta, Minister of Agriculture William Ruto, and other prominent politicians likely on the Waki list, both the establishment NAIROBI 00001267 003 OF 005 of a Special Tribunal and/or going to The Hague are seen as playing a potentially decisive role in the political process, particularly with respect to the 2012 presidential contest. The indictment of any of these prominent figures, but especially Ruto and Kenyatta, could trigger renewed inter-ethnic conflict if not handled very carefully. We should continue to press hard for a credible, independent local Special Tribunal, since taking the issue outside of Kenya will amount to a key setback for the reform process. We must insist that Kenyans themselves tackle the culture of impunity. -------------- Interim Electoral Commission -------------- ¶9. (C) The Interim Independent Electoral Commission is moving to put in place the staff and measures necessary to conduct credible elections. The first test of this will be two parliamentary by-elections set for August 27. We coordinating with the donor group on electoral reform, and we are discussing with the electoral commission $1.5 million in U.S. assistance. The permanent electoral commission will only be set up following adoption of the new constitution, which again highlights the centrality of timely constitutional revision. -------------- Rule of Law/Security Sector Reform -------------- ¶10. (C) While certain matters relating to police and judicial reform can only be finalized as a result of constitutional revision, substantial police and judicial reform can and must be carried out separately. The Task Force on Police Reform may obtain an extension of the end of July deadline to submit its recommendations. While the Task Force has credible leadership, the task force head has demurred when we have pressed him regarding whether there will be a recommendation for personnel changes, particularly to recommend removal of Police Commissioner Ali. While there has been much speculation that the Task Force recommendations could be used as a face-saving means to remove Ali, the President,s permanent secretary recently told the Ambassador not to expect that. The Commissioner continues to receive strong support from the President,s spouse Lucy and his mistress Mary Wambui. ¶11. (C) We have made clear that implementation of police reform recommendations will not likely be credible as long as Ali remains. That said, we will have to take a hard look at the recommendations to determine what, if any, support we should provide for their implementation. There may be discrete elements that we could support (such as an independent oversight body) if they are beyond Ali,s interference. ¶12. (C) In terms of related reform issues, the Cabinet is currently considering a revised draft of an Organized Crime Bill for re-submission to Parliament; Ministry of Internal Security officials tell us that this draft bill is their priority. The bill is intended to strengthen the government,s hand in dealing with Mungiki and other criminal gangs/militias, but Kenyan human rights groups (and some MPs) have raised questions about police accountability and whether the draft legislation gives the police too much power. Interestingly, Ministry of Internal Security officials claim (and this is confirmed by legal experts) that the draft bill also incorporates provisions that can be used to strengthen the government,s hand to detail and investigate terrorists, in the absence of anti-terrorism legislation. ¶13. (C) Three other key elements of rule of law reform include the need for a credible attorney general, additional public prosecutors (there are only 90 for the entire country),and judicial reform. The Ministry of Justice is focusing on judicial reform. Although we are emphasizing the need for urgent action, we see no indication of significant action any time soon on this sensitive issue. While it will be difficult to bring about sweeping reform as long as the current Chief Justice remains in office, there may be ) just as with the police ) discrete areas where we can help. We should also work closely with the World Bank, which has funds for judicial reform, and the larger donor community. NAIROBI 00001267 004 OF 005 ¶14. (C) Meanwhile, Attorney General Wako remains in place. He is one of the key roadblocks to rule of law reform and anti-corruption efforts. We should press for his removal and replacement by someone credible. -------------- Anti-Corruption Efforts -------------- ¶15. (C) No significant steps have been taken against corruption. One important anti-corruption priority is the passage of a Mutual Legal Assistance Bill, recently tabled in Parliament, which would permit the Attorney General and the Chairman of the Kenyan Anti-Corruption Commission to share (give and receive) information from foreign governments to help prosecute corruption cases. The UK has been asking for this legislation for over a year to enable it to share information with the Kenyan government on the Anglo-Leasing case. There is a widespread perception ) which we share ) that corruption is pervasive, involving both of the coalition partners. While mega-scandals like Goldenberg and Anglo-Leasing have not emerged (and are more difficult to carry out now given greater public scrutiny and accountability mechanisms that have been introduced in recent years) corruption on a broad scale is taking place. We note, among others, the maize scandal, the oil pipeline fraud, misappropriated funds in the tourism sector, and introduction of procedures by the Ministry of Industry and relevant agencies which facilitate corruption. We have for some time been receiving credible reports of increased drug trafficking linked to corruption. And, most interestingly, we are hearing about corruption linked to a huge influx of Somali money being used to buy up large sections of Nairobi, with both sides of the coalition reportedly benefiting. This includes reports of bribery for governmental positions and appointments intended for protection. (There is unconfirmed speculation that this money may be connected to piracy and/or al-Shabaab.) We continue to urge decisive action against corruption. Two specific steps would be passage and implementation of anti-moneylaundering legislation, and the establishment of a credible witness protection program. Despite our vigorous efforts to support anti-moneylaundering legislation, it has been derailed for years by vested interests. We are skeptical but, when asked, the presidency permanent secretary claimed the legislation will now be fast-tracked. -------------- -------------- Truth, Justice, and Reconciliation Commission -------------- -------------- ¶15. (C) Legislation to set up a Truth, Justice, and Reconciliation Commission has been passed. The presidency is currently vetting names for the TJRC proposed by Parliament. If handled deftly, the TJRC could contribute to efforts to promote reconciliation and to ease ethnic tensions. This will, however, be tall order, especially since the Commission,s two-year mandate includes everything since independence. In addition, the TJRC legislation envisions an as-yet-unfunded reparations process which threatens to overwhelm trust-funding and restorative justice functions of the body. Meanwhile, the government is doing little at the grassroots or national levels to promote national reconciliation. The Minister of Justice is trying to staff the Department of National Cohesion in his ministry, which has never been operative. ¶16. (C) Promoting reconciliation is an important dimension of the reform agenda, and we continue to make this a priority through public diplomacy, grassroots outreach, and a range of specific USG programs. -------------- -------------- Districts, Constituency Boundaries, and the Census -------------- -------------- ¶17. (C) Establishment of new constituency boundaries is a significant element of the reform agenda. This is complicated by the fact that in recent years and currently President Kibaki continues to create a large number of new administrative districts. Creation of new districts appears to be oriented towards influencing parliamentary and presidential results in 2012. The Boundaries Commission, created pursuant to the reform agenda to map out new, fairer constituency boundaries, is lackluster and it remains to be NAIROBI 00001267 005 OF 005 seen how it will cope with the problem of new districts. The related issues of districts and new boundaries promise to be highly contentious. The national census scheduled to take place in August will be relevant to this process, but could well prove highly contentious as each ethnic group seeks to preserve its perceived interests. -------------- Parliamentary Reforms -------------- ¶18. (C) Progress on parliamentary reforms ) much of accomplished with U.S. assistance -- is encouraging. New and more progressive Standing Orders have been adopted. The parliamentary committees are being strengthened, particularly in their watchdog functions, and committee composition is being determined based on political party strength. Parliamentary reforms are particularly important given the emergence of Speaker Marende as a leading voice supporting implementation of the reform agenda to which the coalition government committed itself. -------------- Land Reform -------------- ¶19. (C) The Minister of Lands recently told the Ambassador that the draft land reform policy will be discussed soon by the full Cabinet. We have been working closely with the Ministry and relevant agencies to provide technical assistance for land reform. While land reform is enormously important, given the sensitivity and complexity of the issue, we do not expect it to move forward any time soon. -------------- Economic Reforms -------------- ¶20. (C) The most important economic reforms would, in fact, be implementation of the various reform agenda items outlined above. Without them, Kenya will not be able to break through the &binding constraints8 that have consistently limited growth. Nevertheless, we should not lose sight of an array of important economic reform issues. The upcoming AGOA forum provides leverage to press for action. Septels will address economic reform issues. ¶21. (C) Reftel (dynamics of change) laid out the approach we are taking, in concert with Washington, to push for and encourage implementation of the reform agenda, and other steps we may want to consider. RANNEBERGER