Constitutional Debate 5: Power to the People

C O N F I D E N T I A L SECTION 01 OF 04 NAIROBI 000029 SENSITIVE SIPDIS E.O. 12958: DECL: 2020/01/08 TAGS: PREL PGOV KDEM KE SUBJECT: Constitutional Debate 5: Power to the People REF: 09 NAIROBI 2666; 09 NAIROBI 2531; 09 NAIROBI 2533 09 NAIROBI 2539; 09 NAIROBI 1711 CLASSIFIED BY: Michael E. Ranneberger, Ambassador, DOS, EXEC; REASON: 1.4(B),(D) ¶1. (C) Summary: This cable is part five in a five part series on the contentious issues and political landscape surrounding the debate on Kenya's Harmonized Draft Constitution. Cable one (Ref A) provided a snapshot of the outstanding contentious issues in the draft constitution: executive authority, devolution, judicial reform, and the Kadhi's courts. Cable two (Ref B) analyzed the influential voices, political position, and strategy of President Kibaki's Party for National Unity (PNU)in respect to the draft; an analysis of Prime Minister Raila Odinga's Orange Democratic Movement (ODM) followed in cable three (Ref C). Cable four (Ref D) reported on the efforts of moderates, both within and outside of the two major parties, to broker a compromise between hardline ODM and PNU positions. This cable assesses the dynamics of public opinion and special interest groups in the context of the upcoming national referendum on the draft constitution. ¶2. (C) Summary continued: The thirty day public comment period on the Harmonized Draft Constitution closed on December 17; during that time the Committee of Experts (COE) responsible for the draft received hundreds of thousands of proposed revisions. The COE, Parliamentary Select Committee (PSC),and ultimately Parliament are now mandated with preparing a final draft that will be put to a national referendum. Despite strong public support for a new constitution, the public is poorly informed about the content of the current draft, and divided as to whether they will vote for or against. Should the PNU and ODM fail to reach consensus on the draft, one or the other parties will seek to defeat the draft by mobilizing public opposition around wedge issues such as the inclusion of Islamic Kadhi courts in the draft. Logistically, the Independent Interim Electoral Commission (IIEC) has not yet begun the process of voter registration, making a planned April referendum impossible. Observers believe a July or August date for the referendum is more likely. End Summary. PUBLIC INPUT PROCESS UNCLEAR, VOTERS UNINFORMED ON CURRENT DRAFT NAIROBI 00000029 002 OF 004 -------------- -------------- -------------- -- ¶3. (C) Kenya's first attempt at constitutional reform, the 2004 "Boma's draft," began with an extensive program of public consultations throughout the country that informed the drafting process. The Boma's process failed when the draft was rewritten by the Attorney General and voted down in a referendum. For this iteration, the Committee of Experts was mandated first to find consensus solutions to the contentious issues that had frustrated previous drafts (Ref A),and then release a proposed draft for public comment. After a slow start in which many Kenyans complained they were unable to obtain a copy of the Harmonized Draft Constitution, individuals and interests groups mobilized to present their views to the COE by the December 17 deadline. The COE received hundreds of thousands of comments, but there has been no clear process to consider and weigh the opinions received. A member of the Parliamentary Select Committee (PSC),which will receive a revised draft for review on January 8, remarked to Poloff that the COE is likely to make only cosmetic changes to their original draft in response to the public comments. ¶4. (C) Despite strong interest and support for a new constitution, most citizens do not feel that they are well-informed on the content in the proposed draft. A national survey conducted at the end of the public comment period in December found that two-thirds (64%) of Kenyans say that they are not familiar with the contents of the draft. Reflecting public unfamiliarity with the draft, one-third of Kenyans say that they will vote for the draft in the referendum (34%), three-in-ten plan to vote against (29%),and a plurality (37%) are undecided. ABSENT COMPROMISE, REFERENDUM WILL BE DIVISIVE -------------- -------------- -------------- ¶5. (C) The referendum process will be divisive and possibly violent if PNU and ODM principals fail to reach a consensus position on executive authority and the structure of government by the time the draft is voted out of Parliament in early NAIROBI 00000029 003 OF 004 March (Ref D). Whichever party feels disadvantaged by the draft presented to voters will have a strong incentive to campaign against it. As a member of the PNU negotiating team observed to Poloff, "As we saw in the last constitutional referendum, it is far easier to campaign against a draft than it is to support - all you have to do is go to different communities and tell them that their interests will be harmed in the proposed constitution. For example if I go to a Maasai village and tell them that communal grazing land will be turned into private shareholdings, they will all vote against the draft." ¶6. (C) If either party decides to pursue a rejectionist campaign, their likely strategy will be to politicize minor but emotive clauses in the draft. The most sensitive wedge issue at this point is the inclusion of Islamic Kadhi's courts in the draft (Ref E). Although the Kadhi's courts are recognized under the current constitution and the draft carries over the same relevant clauses, evangelical and pentecostal Christian leaders are mobilizing public opposition to the inclusion of the courts in the current draft. In a meeting with the Ambassador, influential bishops and pastors were emphatic that the inclusion of Kadhi courts in the draft is indicative of an Islamist agenda, and were confident that Kenya's eighty percent Christian public would vote down the draft on their instructions. (Note: the Ambassador pointed out that such a move would be self-defeating, as it would guarantee the continuation of the Kadhi courts under the current constitution while denying Kenyans the political reforms contained in the draft. End note.) Despite the nonpartisan (though overtly religious) rhetoric used by the Christian leaders, several sources have confirmed that elements within the PNU are funding and encouraging the anti-Kadhi campaign. The PNU views the Kadhi's issue as a useful red herring that could lead to defeat of the draft without overt involvement by the party. ¶7. (C) In a worst-case scenario, groups strongly opposed to the draft could engage in sporadic violence. Violence around the referendum is not likely to be as extensive or severe as the post-election crisis in 2008, but it could occur in the same areas and it would reopen unhealed wounds and grievances between communities. NAIROBI 00000029 004 OF 004 LOGISTICS FOR REFERENDUM NOT YET IN PLACE -------------- -------------- -------------- ¶8. (C) Political debates aside, the Independent Interim Electoral Commission (IIEC), which is mandated with administering the constitutional referendum, is not on track to mount a referendum by the planned April date. The IIEC is in the midst of hiring middle and senior management staff. In February the IIEC will begin voter registration from scratch, a process that will take at least two to three months. (Note: After the election crisis, Parliament declared the current voter register null and void and ordered a completely new registration exercise. Some contacts are suggesting that if creation of a new register proves too costly, time-consuming, or cumbersome, the IIEC will merely update and "revalidate" the old flawed register. End Note) Most observers agree that the referendum will likely be held in August. ¶9. (C) Comment: Post continues to urge both the President and Prime Minister to reach a consensus position on executive power and jointly champion the draft during the referendum period. Recent calls by the Secretary to Odinga and Kibaki (reported septel) were very useful in driving home the urgent need for compromise. Post is also reaching out to groups whose focus on wedge issues - such as the Kadhi courts - threatens broader political reform, and is providing technical assistance to the IIEC. End Comment. RANNEBERGER