US embassy cable - 05NAIROBI3982

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 003982 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: DECL: 08/23/2015 
TAGS: PGOV, PREL, PHUM, KDEM, KE, Referendum 
SUBJECT: HOW DO WE RUN THIS THING? COMMISSIONS WEIGH IN ON 
REFERENDUM PROCESS 
 
REF: A. (A) NAIROBI 3847 
     B. (B) NAIROBI 3779 
 
Classified By: Deputy PolCouns L. Peterson for reasons 1.4 (b,d) 
 
1.  (SBU) SUMMARY:  A September 21 lunch with members of the 
Electoral Commission of Kenya and the Constitution of Kenya 
Review Commission revealed that both organizations are 
unclear on the referendum process and their respective roles. 
 Exactly two months before the November 21 constitutional 
referendum, there is debate within and between the two 
commissions on what rules should apply to the vote, each 
organization's responsibilities, and the civic education 
program.  END SUMMARY. 
 
2.  (SBU) An Embassy-hosted lunch brought together Electoral 
Commission of Kenya (ECK) and Constitution of Kenya Review 
Commission Chairperson (CKRC) officials for a discussion of 
the administrative and legal framework associated with the 
upcoming referendum.  Included in the event were ECK Vice 
Chairman Gabriel Mukele and Commissioners Wangui Karanja and 
Henry Jura, as well as CKRC Chairperson Abida Ali Aroni, 
First Vice Chairpersons Wanjiku Kabira and Ahmed Idha Salim, 
and Vice Chairperson HWO Okoth-Ogendo. 
 
IN THE GRAY 
----------- 
 
3.  (C) Commission members debated whether election rules 
should apply, such as those pertaining to party agents at 
polling stations, and the use of public funds for 
campaigning.  The ECK said that they were treating the 
current process like any other election, while the CKRC's 
Okoth-Ogendo argued this was not a simple vote for candidates 
and that people should be made to understand that the results 
of this poll will not be undone in five years.  ECK Vice 
Chairman Mukele concluded that however "crudely" the draft 
constitution and the referendum had been arrived at (due to 
political and judicial ineptitude, others argued) the two 
commissions were mandated with carrying out an act of 
Parliament as best they could. 
 
4.  (C) Clearing the air on who does what, Okoth-Ogendo 
explained the difference between voter and civic education: 
the latter aims to explain the document to voters, while the 
purpose of the former is to ensure citizens make their 
intended choice when they vote.  This raised the question: 
which document should civic educators explain?  The CKRC 
stated that Kenyans are familiar with the 2004 Bomas-approved 
draft after two years of debate surrounding the creation of 
the document, and will look for a comparison.  Therefore 
civic educators will present the current draft, but be 
prepared to answer questions on the existing constitution and 
the Bomas draft.  The Commissioners noted that they should 
have earlier had a conversation on a joint ECK-CKRC effort, 
since both groups had people out in the field. 
 
5.  (C) In response to Okoth-Ogendo's comment that the 
Bomas-approved draft had "disappeared" from the CKRC website, 
Henry Jura wondered how divided the CKRC was, alluding to 
allegations that some CKRC members (such as Aroni, who was 
not yet present) had been less than impartial (ref B). 
Members on both sides agreed that even a whiff of bias in 
civic education could be (or already was) the program's 
demise.  Aroni later admitted that within the organization 
there were differing views, but publicly the Commission had 
been able to speak with one voice. 
 
CIVIC EDUCATION STILLBORN? 
-------------------------- 
 
6.  (C) The ECK asserted that the Civic Education process was 
"tainted and broken," and therefore ineffective, leaving the 
door open for politicians to argue for their own right to 
campaign.  In contrast to ECK Chairman Samuel Kivuitu's 
strong statement against campaigning before October 21 
because of the detrimental impact on civic education (ref A), 
his deputy, Mukele, insisted that there was no prohibition 
against campaigning.  He added that the October date only 
designated a "hot" period just prior to the vote.  Members of 
both commissions agreed that the education program could only 
reach people who had not already made up their minds, and 
that many voters had not, and would not, read the text of the 
proposed draft. 
 
7.  (C) The question, "how does civic education work," did 
not receive an answer but prompted a discussion of the ECK 
and CKRC's respective roles.  Aroni later updated on the 
program's progress, explaining that it had "barely begun." 
They had decided to use Community Based Organizations 
(smaller and less formal than civil society organizations) 
who were yet to be trained, but had programming on the radio 
already and would begin "in earnest" in October.  She did 
admit, however, that the CKRC had "lost time." 
 
TIME, VIOLENCE, AND THE DAY AFTER 
--------------------------------- 
 
8.  (C) The group remained divided on whether the time 
allocated for the referendum process was appropriate.  Aroni 
confessed that she was "tired" and argued for doing "the best 
we can, why drag it out?"  Jura, on the other hand, 
reiterated that the outcome was too important to rush.  The 
members were reluctant to discuss the prospect for further 
violence during the next two months: "I would rather not 
predict," Mukele demurred.  Looking ahead, the commissioners 
agreed that a "No" vote would not result in crisis as the 
existing constitution would still be in place, but 
"agitation" was possible. 
 
COMMENT: JUST BE CLEAR 
---------------------- 
 
9.  (C) Nearly two weeks after the launch of the civic 
education program there was still no answer to how it will be 
carried out, illustrating the fog surrounding the 
organizations who are supposed to be at the center of the 
referendum process.  The apparent lack of clarity on the 
process is not entirely unexpected considering the referendum 
is an unprecedented undertaking for Kenya.  It is, however, 
disconcerting in light of the potentially damaging 
ramifications: violence (which sparked again later the same 
afternoon, septel) and political turmoil.  The best outcome 
will be a decisive decision, either "Yes" or "No", that 
leaves little room for further political, and physical, 
wrangling.  END COMMENT. 
BELLAMY