US embassy cable - 05NAIROBI4749

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004749 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: DECL: 11/14/2025 
TAGS: PGOV, PREL, ASEC, KDEM, KE, Referendum 
SUBJECT: MORE DEATHS AS KENYA HEADS INTO CONSTITUTIONAL 
REFERENDUM 
 
REF: A. NAIROBI 4551 
     B. NAIROBI 3847 
 
Classified By: Political Counselor Michael J. Fitzpatrick for reasons 1 
.4 (b,d) 
 
1.  (C) SUMMARY: With just one week remaining before the 
constitutional referendum, four more Kenyans died in police 
clashes at an Orange ("No") rally.  Meanwhile, while the 
Banana ("Yes") team has resorted to more underhanded methods 
(such as scheduling presidential travel to force cancellation 
of planned "No" rallies) to thwart Orange efforts.  A 
November 15 a court ruling allowing the referendum process to 
continue denied the government-backed pro-draft constitution 
team an opportunity to walk away from the constitutional 
race.  The debate, which has become a proxy battle for power 
in Nairobi, will continue at least until November 21 -- and 
likely well beyond.  END SUMMARY. 
 
ORANGE SUPPORTERS CLASH WITH POLICE 
----------------------------------- 
 
2.  (U) After a two-week hiatus from deadly violence, four 
more Kenyans died during a November 11 "No" rally in Likoni, 
on the coast south of Mombasa, which police disrupted for 
being "illegal."  A fiery riot erupted when officials denied 
the Orange team permission to hold the event as it coincided 
with President Kibaki's "impromptu" visit to the area.  The 
latest violence renewed allegations of excessive use of force 
by police (the same was said after four deaths at a Kisumu 
rally on October 29 (ref A)).  Mombasa was only his second 
foray out of Nairobi to campaign for the proposed draft 
constitution, but President Kibaki will follow his coast trip 
with a visit to Western Province from November 15, where 
Orange also has previously planned rallies. 
 
3.  (C) Following the violence, reports emerged that the 
government had canceled the last week of "No" rallies. 
Although, according to the media, Internal Security Minister 
John Michuki confirmed that he had indeed called off the 
Likoni rally, Coast NARC Coordinator Karigithu dismissed the 
rumor of a blanket ban as propaganda to taint the 
government's image.  Equally insistent, "No" team referendum 
steering committee member Josephine Odhiambo told Poloff that 
her group was going ahead and that Orange rallies will 
continue. 
 
ELECTORAL COMMISSION: TAKING A STAND OR STANDING BY? 
--------------------------------------------- ------- 
 
4.  (C) Electoral Commission of Kenya (ECK) Vice Chairman 
Gabriel Mukele had announced November 7 that the ECK would 
ban further campaigning if there were any more deaths in 
connection with "Yes" or "No" rallies.  Mukele's reprimand 
recalled an earlier statement from the ECK requesting the two 
teams to refrain from holding events in advance of the 
"official" campaign period (ref B).  The Vice Chairman's 
previous warning was largely ignored, apart from retorts that 
the organization was toothless and thus unable to enforce any 
policy decrees.  Asked about the ECK's follow-up on its 
November 7 statement in light of the renewed violence, Mukele 
told Poloff that he and the other chairmen were meeting on 
November 14 to consider the matter and that "something will 
be coming very soon."  Asked about the Commission's ability 
to make good on its warning, Mukele referred to provisions in 
the constitution and the electoral code of conduct. 
(COMMENT: But ECK is powerless to enforce its opinions.  END 
COMMENT.) 
 
THE REFERENDUM IS STILL ALIVE 
----------------------------- 
 
5.  (U) With the campaign period winding down (and the 
intensity level ratcheting up), there are still calls to 
postpone or cancel the referendum.  In a November 12 
interview, while reaffirming her neutrality in the debate, 
Nobel Peace Prize laureate (and Assistant Environment 
Minister) Wangari Maathai questioned the wisdom of "rushing" 
into a decision on the constitution.  Calling the referendum 
"a farce," she said that national polarization along tribal 
lines was being used as fuel for an intra-elite  battle for 
power.  Indeed the entire process threatened to screech to a 
halt on November 15, but in an hours-long decision before 
cabinet ministers and members of Parliament, the Kenyan High 
Court ruled against a suit alleging that the constitutional 
review was illegitimate.  Noting that it would be against the 
public interest to call off the referendum, the court did not 
find the argument sufficient to determine that the process 
was illegal. 
6.  (C) COMMENT: The "Yes" team's underhanded attempts to 
disrupt Orange plans by scheduling coincidental presidential 
travel, exacerbating the intense animosity between figures on 
both sides, further highlights the extent to which the 
referendum process has cleaved enduring fissures in the 
political landscape.  The ECK, for all its good intentions to 
run a free, fair, transparent, and non-violent vote is not 
likely to take more than a rhetorical stand against 
campaigners, illustrating the difficult job it has of trying 
to officiate a clean fight without the tools to do so. 
Denied the opportunity to walk away from the constitutional 
race intact, the largely government-backed pro-draft 
constitution team will intensify its efforts (read: step-up 
the favor granting) to ensure a win for the document and to 
retain the upper hand in the national political debate in 
Nairobi.  As the President's strategic advisor told us after 
the court's ruling, "we are working at full throttle."  END 
COMMENT. 
ROWE