US embassy cable - 05NAIROBI4436

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004436 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: DECL: 10/25/2015 
TAGS: PGOV, PREL, ECON, SENV, KDEM, KCOR, KE, Election 
SUBJECT: "OFFICIAL" CAMPAIGN PERIOD KICKS OFF AS PRESIDENT 
ENTERS THE FRAY 
 
REF: A. (A) NAIROBI 4246 
     B. (B) NAIROBI 3781 
 
Classified By: A/Political Counselor Lisa Peterson for reasons 1.4 (b,d 
) 
 
1.  (C) SUMMARY: The "official" period for campaigning for or 
against the proposed draft constitution kicked off on October 
21, with the banana "Yes" team on the defensive following the 
publication of unfavorable opinion poll results and President 
Kibaki attracting criticism for allegedly defying a High 
Court order.  Violence continues to mar the now official 
"Yes" and "No" rallies with two recent events requiring 
police and tear gas intervention.  With less than one month 
remaining before the vote, some focus has shifted to the 
heretofore relatively quiet Kibaki, and the extent to which 
he will exert his executive authority over other legally 
independent branches of the government to secure votes in 
favor of the proposed draft constitution.  END SUMMARY. 
 
BANANAS AND ORANGES CRY SOUR GRAPES 
----------------------------------- 
 
2.  (SBU) Just in time for the start of the official campaign 
period, local media reported the results of a nationwide 
opinion poll on October 22, highlighting the finding that the 
"Yes" team trails the "No" campaign by ten percentage points. 
 Also of note, nearly a quarter of Kenyans polled had not yet 
decided, and of those who had, many were not firm in their 
choice.  While the anti-draft Orange group argued that the 
margin was actually wider, supporters of the draft 
constitution also cried foul, disputing the conclusion that 
"Yes" is behind at all, and reverting to their now-familiar 
refrain of questioning the funding behind the poll.  Despite 
their reported lead in the referendum race, two of the first 
"official" Orange rallies on October 23 and 24 turned ugly at 
the hands of pro-draft youths, who were ultimately dispersed 
by police and tear gas. 
 
KIBAKI FLEXES HIS EXECUTIVE MUSCLES 
----------------------------------- 
 
3.  (U) For "No" voters, according to the poll, an important 
consideration was the strength of the executive in the 
proposed draft, an issue that made headlines earlier in the 
week.  On October 15, President Mwai Kibaki distributed land 
titles to members of the Ogiek community whom the government 
had previously evicted in the interest of preserving the Mau 
forest complex, immediately sparking outcry that the leader 
had wittingly and openly defied a court order in doing so. 
The Kenya High Court issued an order on October 14 calling 
for suspended action on land awards to the displaced Ogiek 
pending decision on a case that some members of the community 
had been excluded.  Critics argue that by proceeding in spite 
of the court's decision, Kibaki had publicly and brazenly 
suggested he was above the law, and that he had issued the 
titles in an effort to win support for the proposed draft 
constitution (ref A). 
 
4.  (C) According to the President's official website, Kibaki 
dismissed as "cheap propaganda" the claim that he handed out 
the deeds to "solicit favors," and chastised his critics for 
politicizing the matter.  Kibaki's defenders argue that the 
court order applied to the Ministry of Lands, and not the 
President, and that it referred to the "issuing" of deeds, a 
lengthy process separate from the President's action, which 
was simply to formally hand them over.  However, 
International Commission of Jurists (ICJ) Kenya Chairman 
Otiende Amollo told poloff that a court order prohibiting an 
action applies equally, and that while awareness of the 
decision could factor in determining disobedience of a court 
order, there is no question in this case that the President 
knew of the ruling. 
 
5.  (C) Highlighting the matter as an executive abuse of 
power, an October 21 "Kenya Times" editorial observed that 
while Kenyans had come to expect ministers and other 
officials to break the law, having the President "thumb his 
nose" at the judiciary has opened a new, more worrisome 
chapter.  A separate report called for the Chief Justice, as 
head of an independent branch of the government, to reprimand 
Kibaki.  The ICJ's Amollo concluded, however, that despite 
the uproar, the President's defiance would likely go 
unchecked. 
 
DON'T UNPACK JUST YET 
--------------------- 
 
6.  (U) The majority of the title deeds that Kibaki handed 
out would resettle the recipients back in the Mau forest, 
from where they were recently evicted (ref B).  Those 
evictions, carried out in an abusive and heavy-handed manner, 
were part of a larger GOK effort to revitalize the country's 
heavily deforested "water towers," the source of household 
and agricultural water for most of central Kenya.  The East 
Africa Wildlife Society (EAWLS), which, along with other 
organizations and individuals, filed a case in 2002 to stop 
the illegal settlement in the Mau Forest, issued a press 
statement that the "reopening of illegally excised forest to 
settlement and issuance of title deeds to these forest 
settlers is in breach of law and is in contempt of court" and 
cautioned that the "beneficiaries should be aware of the 
probability that they will be evicted again."  The next High 
Court of Kenya hearing on this case is scheduled for November 
28, a week after the referendum. 
7.  (C) COMMENT: Even if the plan to resettle Ogiek evictees 
had long been in the works, as Kibaki claimed, the timing 
with respect to the referendum is suspect, and the action 
with respect to the judiciary is troubling.  Kibaki's land 
handout will sharpen focus on his conduct in this final month 
before the referendum, during which he is expected to hit the 
campaign trail in earnest.  END COMMENT. 
BELLAMY