PARLIAMENT SETTING KEY PRECEDENTS IN FIGHT OVER

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 001925 SIPDIS DEPT FOR AF/E DRIANO E.O. 12958: DECL: 09/14/2019 TAGS: PGOV KDEM PREL KCOR KE SUBJECT: PARLIAMENT SETTING KEY PRECEDENTS IN FIGHT OVER RINGERA REF: A. NAIROBI 1267 ¶B. NAIROBI 1859 Classified By: Ambassador Michael E. Ranneberger for reasons 1.4 (b) an d (d) ¶1. (C) SUMMARY: Bolstered by new Standing Orders and an articulate, independent Speaker, Parliament's attempts to nullify the reappointment of Kenya Anti-Corruption Commission Director Aaron Ringera have established several key precedents which strengthen Parliament's independence and ability to check executive authority. The new Standing Orders and supporting legislation (drafted by a USG-supported Parliamentary strengthening program) empower Parliament to set its own legislative calendar and veto line items from appropriations bills. In interpreting the new Orders, Speaker Kenneth Marende ruled that Parliamentary committees may independently initiate investigations, and rejected the government's efforts to end debate on the Ringera appointment. As Parliament takes a firm stand on Ringera's reappointment, supporters of the President are working to find means to limit the authority of the Speaker as an individual and Parliament as an institution. END SUMMARY. ¶2. (C) Parliament's opposition to President Kibaki's reappointment of Aaron Ringera as the Director of the Kenya Anti-Corruption Commission (KACC) has strengthened in the past two weeks. Discussions on Ringera's reappointment did not include key Party for National Unity (PNU - President Kibaki's party) stakeholders, and was unilaterally planned by Minister for Justice and Constitutional Affairs Mutula Kilonzo (PNU) and the Head of Civil Service Francis Muthaura. As a result, several PNU ministers and many members of Parliament are furious with the President and frustrated that they must defend the reappointment in the face of strong public opposition. Deputy Prime Minister and Minister for Finance Uhuru Kenyatta reached out to Fred Matiangi, the director of the USAID-funded State University of New York's (SUNY) Parliamentary Strengthening Program to complain that he was being asked to "carry the water" for the unpopular move by the President, Kilonzo and Muthaura. Uncompromising statements by Kilonzo that Ringera was reappointed legally and that critics should just "shut up" have convinced the majority of Parliamentarians that the Presidency is unwilling to negotiate in good faith. ¶3. (C) Utilizing provisions in the new Parliamentary Standing Orders (developed through USG support),Members of Parliament (MPs) are opposing the reappointment in several ways. As the reappointment was made on the eve of a planned Parliamentary recess, MPs utilized their newfound control over the Parliamentary calendar to vote down the government's motion to adjourn, indefinitely extending the session to debate the reappointment. Two committees petitioned Speaker of Parliament Kenneth Marende for permission to investigate the Ringera appointment; Marende ruled that under the new Standing Orders committees now have the authority to initiate investigations without permission from the chair. On September 4 the two committees met jointly and introduced a resolution to render the President's reappointment null and void. ¶4. (C) As the Fiscal Management Act (also USG supported) empowers Parliament to veto line items in appropriations bills, MPs have introduced motions to strip the KACC of funding and to revoke the Director's salary. The first motion could result in the dissolution of KACC (Comment: we believe that this would be counterproductive to anti-corruption efforts and are urging Parliamentarians not to take such drastic measures. End Comment) In response, the Minister for Finance has withdrawn the appropriations bill temporarily, but it must be passed in the next few weeks or the government will run out of operating funds. ¶5. (C) Facing revolt in Parliament, a small group of ministers loyal to the President have unsuccessufully sought to cajole and threaten fellow PNU MPs to support the reappointment. On September 7, members of the Law Society of Kenya (LSK) filed suit in the High Court seeking to block the reappointment. It is widely believed that the suit was filed at the behest of the President's team, as Kilonzo moved the following day to invoke sub judice provisions to bar Parliamentary debate on the reappointment. (Comment: "Sub judice" is a principle in the Standing Orders barring Parliament from debate on an issue if it is an active matter before the judiciary and debate would prejudice the outcome of the suit. Sub judice was used by the Moi government to prevent Parliament from debating Goldenberg. End Comment) ¶6. (C) On September 10, Speaker Marende ruled that the sub NAIROBI 00001925 002 OF 002 judice provision did not apply under the new Standing Orders, as Parliament initiated debate on the reappointment prior to the filing of the suits. Marende went on to rule that the Office of the Speaker would likely reject motions of sub judice where matters of national interest are at stake, dramatically limiting the government's ability to shut down Parliamentary debate by filing a lawsuit. When Parliament reconvenes on September 15, MPs are expected to pass the motion invalidating the gazette notice reappointing Ringera, and are likely to strip the KACC of funding when the government reintroduces the appropriations bill. At the same time, the High Court will likely also rule on the lawsuits on September 15; observers believe that the court will rule the appointment illegal, but the matter will be appealed to the Constitutional Court, where Chief Justice Evans Gicheru will ensure that the President's position prevails. ¶7. (C) PNU ministers close to President Kibaki are reacting angrily to this exercise of Parliament's prerogative, charging in the press that Marende's rulings are "illegal" and intended to "humiliate the executive," but their arguments are running contrary to public opinion and are further alienating Parliament. The President's team are seeking to limit Marende's powers, but have not found any mechanisms that would win the support of Parliament. Some PNU hardliners are reportedly considering a petition to the Constutional Court to declare the new Standing Orders unconstitutional. Absent legal venues, some contacts have raised concerns that Marende might be targeted for violent reprisals. -------------- COMMENT -------------- ¶8. (C) Parliament's vigorous opposition to the Ringera appointment demonstrates the increasing autonomy of the legislative branch, bolstered by our long-running Parliamentary support program. However, in their zeal MPs may go so far as to destroy the KACC, and undermine the larger goal of developing institutional capacities to fight corruption. A constitutional conflict may also be in the works if Parliament and the Constitutional Court take opposing positions on the Ringera appointment. ¶9. (C) We are reaching out to PNU ministers and MPs of all parties, urging that the President demonstrate leadership and responsiveness to public opinion by negotiating an acceptable compromise with Parliament that sees Ringera removed but the KACC funded. Given the internal divisions within the PNU, there are strong voices arguing that the way forward is not the blind exercise of executive authority, but reasoned negotiation with the legislative branch that results in a win-win outcome for both the President and Parliament. End Comment. RANNEBERGER