THE CONSTITUTIONAL REVIEW PROCESS AND THE REFORM

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 002340

SIPDIS

DEPARTMENT FOR AF/E

E.O. 12958: DECL: 11/10/2019
TAGS: KDEM PGOV PREL KE
SUBJECT: THE CONSTITUTIONAL REVIEW PROCESS AND THE REFORM
AGENDA

Classified By: Ambassador Michael E. Ranneberger for reasons 1.4 (b) an
d (d)


1. (C) Summary. Meaningful constitutional review is vital to
successful implementation of the reform agenda and to
mitigate prospects for violence and instability in connection
with the 2012 elections. While there is broad appreciation
of this, President Kibaki, Prime Minister Odinga and their
teams have not reached compromise on the structure of
executive power in the new draft constitution. If they do
not do so before the draft is tabled in Parliament (which may
take place next week),the constitutional review process
could well prove divisive and still-born. Kofi Annan is
pressing both sides to reach a compromise, and will call
Kibaki and Odinga if they fail to do so in the coming days.
We have made clear our support for such a compromise. Key
deliberations between the two sides are taking place this
week, on the eve of Parliament,s return after a two-month
hiatus. We should consider weighing in with Kibaki and Odinga
to support Annan,s intervention, if necessary. End summary.


2. (C) As a result of the agreement to form the coalition
government, a Committee of Experts was formed to make
recommendations for review of the current constitution. The
Committee is widely regarded as credible, though President
Kibaki,s advisors complain that ODM (pro-Odinga) voices
outweigh PNU (pro-Kibaki) voices on the committee. The
Committee has been soliciting input from civil society,
political parties, and the public. Even before the Committee
began its work, there was broad agreement that there were
three contentious issues the committee would work to resolve:
the structure of executive power, devolution of power to
regional and local levels, and arrangements for the
transition between the current constitution and the new
constitution.

3. (C) The Committee is tasked with producing a draft new
constitution for submission to the Parliament for
consideration. Once Parliament has approved the draft, there
will be a national referendum. President Kibaki and Prime
Minister Odinga have consistently maintained that there goal
is to hold a referendum by mid-2010 latest.

4. (C) Despite such optimistic rhetoric, the constitutional
review process has been hampered by political machinations.
It is generally recognized that the most difficult issue is
the structure of executive power, i.e. will there be a strong
President, a strong Prime Minsiter, or some hybrid approach.
As the head of the Committee of Experts told me months ago,
unless Kibaki and Odinga can agree in advance on the
structure of executive power and then make that proposal to
the Committee of Experts to incorporate into the draft, the
entire process may be still-born. If Kibaki and Odinga do
not reach agreement in advance of the tabling of the
constitution draft in Parliament, the debate is likely to be
divisive and polarizing, clouding prospects for compromise
and increasing the likelihood of ethnic conflict around the
public referendum.

5. (C) Kibaki and Odinga clearly understand this dynamic. It
is hard, therefore, to explain their failure to work out a
compromise on the structure of executive power unless they
lack the political will to do so, or have alternative
gameplans. Kibaki,s team favors a strong executive; Odinga
and his team claim to favor a hybrid system with a relatively
strong PM. It is possible that the two sides may be
miscalculating. Kibaki,s people may believe that failure to
reach a compromise will doom prospects for a new
constitution, which would be fine with them since they favor
the current system with a strong executive. Odinga may
believe that he has the votes in Parliament to force through
approval of a hybrid system, and then win a divisive
referendum.

6. (C) A divisive national referendum along the lines of the
one held in 2005 would be worse than no revision of the
constitution. A divisive referendum would raise tensions in a
way that would damage prospects to hold a peaceful, credible
election in 2012, and could be a trigger for significant
ethnic violence. Given the reports of light arms flowing into
the country, this is an eventuality that must be avoided at
all costs.

7. (C) Understanding this, Kofi Annan has been pushing Kibaki
and Odinga to reach a compromise. During his November visit,
Annan urged them to do so, and obtained their agreement to
form a committee to work out a compromise to be presented to
Kibaki and Odinga. That committee is headed by Minister of
Justice and Constitutional Affairs Mutula Kilonzo for
Kibaki,s side, and by Minister of Lands Orengo (a
constitutional lawyer) for Odinga,s side. The committee has
met only a couple of times and each side blames the other for
lack of progress. We have also been encouraging the two sides
to work out a compromise.

8. (C) The Committee of Experts is already behind the

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legally-mandated scheduled to send the new draft constitution
to Parliament. The Chairman has delayed doing so to buy time
for the two sides to work out agreement on the structure of
executive power. Under the growing time pressure, and as a
result of Kofi Annan,s pressure and ours, it appears that
the committee finally made some progress last week. The
committee will meet again November 10. Kibaki and Odinga
have also called a Cabinet &bonding retreat8 for Nov.
13-14, which may be aimed at forging consensus on the draft
constitution. Kibaki and Odinga are under growing pressure
from all over on the reform agenda, and delivering a
consensus constitution draft would be a major deliverable.
Meanwhile, the head of the Committee of Experts told me that
he will hold off until next week to present the draft to
Parliament, in order to give more time for the two sides to
work out a deal.

9. (C) Annan told me that he is talking with both sides to
urge them to reach a deal, and he will call Kibaki and Odinga
this week if the committee does not make progress. Annan will
keep me apprised of his contacts. We may also want to
consider weighing in at high levels if the two sides do not
move forward.

10. (C) While the reform agenda covers a wide array of vital
issues, constitutional review is in many respects the central
issue. A new constitution reached through consensus by the
coalition partners and consultation with stakeholders is
crucial to provide a framework to manage political and ethnic
competition so that each election is not seen as a
winner-take-all scenario. Without that new framework,
violence and instability will be almost inevitable in
connection with the 2012 elections. A new constitution would
help mitigate in favor of a more peaceful political contest.
Other reforms, with respect to the police and judiciary, are
key to complement constitutional review and to give all
groups more assurance that their interests will be
safeguarded, but if constitutional review fails, those other
reforms will not be sufficient to change the dynamics for

2012.

11. (C) In order to support the constitutional review
process, USAID has provided funding to the International
Development Law Organization to support the Committee of
Experts. We are also working with the Interim Independent
Electoral Commission, which is mandated to undertake the
referendum, but has not yet begun the critical step of voter
registration.
RANNEBERGER