VZCZCXRO2900
OO RUEHROV
DE RUEHNR #2666/01 3561409
ZNR UUUUU ZZH
O R 221408Z DEC 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0247
INFO IGAD COLLECTIVE

UNCLAS SECTION 01 OF 02 NAIROBI 002666 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KDEM KJUS PREL KE
SUBJECT: Constitutional Debate 1: A Primer on the Contentious Issues 
 
REF: NAIROBI 2514 
 
¶1. (U) Summary: This cable is part one of a five part series on the 
contentious issues and political landscape surrounding the debate 
on Kenya's Harmonized Draft Constitution.  This cable provides a 
snapshot of the outstanding contentious issues in the draft 
constitution: executive authority, devolution, judicial reform, and 
the Kadhi's courts.  Cable two analyzes 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) follows in 
cable three.  Cable four reports on the efforts of moderates, both 
within and outside of the two major parties, to broker a compromise 
between hardline ODM and PNU positions.  Cable five assesses the 
dynamics of public opinion and special interest groups in the 
context of the upcoming national referendum on the draft 
constitution. 
 
¶2. (SBU) Summary continued: Kenya's two main political parties are 
currently locked in tense negotiations over the draft constitution. 
Agreement must found during the course of talks if the 
constitutional review and referendum process is to be peaceful and 
successful. The parties are far apart on how to vest power in a 
president or a prime minister, as well as the method of election. 
Differences also remain over devolved government, the judiciary, a 
recall provision for members of parliament, and Kadhi's courts. 
Kadhi's courts address only civil issues under sharia law where 
both parties are Muslims, but are opposed by some major Christian 
organizations. It remains unclear whether the parties will 
negotiate in good faith, or use political alliances to push 
parochial agendas. End summary. 
 
¶3. (SBU) As debate on Kenya's draft constitution moves from the 
public sphere to Parliament, stumbling blocks to consensus are 
emerging in key areas. Both parties are fighting vigorously over 
the structure of the executive and the status of devolved 
government. The major parties agree on the framework of the 
judiciary and the inclusion of Kadhi's courts, but the two issues 
are contentious with domestic interest groups. The public comment 
period ending on December 17; as a result, many decisions will be 
made between the Committee of Experts (CoE), tasked with drafting 
the constitution, and Parliament, which must approve a draft before 
it proceeds to a national referendum. 
 
¶4. (SBU) It is unclear whether the two Grand Coalition committees, 
the vehicle for major political parties to reach consensus on the 
draft, will continue negotiating after the public comment period 
ends. The next step in the process requires the CoE to deliver a 
new draft to the Parliamentary Select Committee (PSC) on January 
7th. Party leaders could delay negotiations if they perceive a new 
draft strengthening their position. Meanwhile, interest groups will 
lose their ability to influence the CoE directly, and will be 
forced to rely upon Members of Parliament (MPs) to negotiate on 
their behalf.  At the Parliamentary stage, a two-thirds vote is 
required to alter the draft constitution.  The PSC and Parliament 
will be able to send the draft back to the CoE a total of two times 
before a final draft must be voted on by the entire parliament 
between mid-March and early April prior to a referendum. 
 
¶5. (SBU) The Party of National Unity (PNU) and the Orange 
Democratic Movement (ODM) have tasked the Grand Coalition 
Management and Technical Committees with negotiating a compromise. 
The six-member Technical Committee is most involved in the detailed 
negotiations, led by Justice Minister Mutula Kilonzo for PNU, and 
Odinga adviser Miguna Miguna for ODM. The inclusion of many 
politicians with presidential ambitions on the Management Committee 
could complicate negotiations. Currently Deputy Prime Minister 
Uhuru Kenyatta, Deputy Prime Minister Musalia Mudavadi, Agriculture 
Minister William Ruto, and Internal Security Minister George 
Saitoti are all rumored to be seeking higher office in 2012 or 
beyond, and may negotiate with an eye to personal advantage. 
 
¶6. (SBU) Debate over the powers of the executive could determine 
the success or failure of the draft constitution. The draft 
proposes a popularly elected president as head of state with 
limited powers, and a prime minister, appointed as the head of the 
largest party or coalition in parliament, to serve as head of 
government and run day-to-day affairs through the cabinet. Though 
both sides agree in principle to a hybrid system, the division of 
power remains the main point of contention. For example, plans have 
been discussed which allocate defense and foreign affairs powers to 
the president with other cabinet agencies under the purview of the 
prime minister, though concrete proposals have not yet emerged. 
 
¶7. (SBU) At this time, President Kibaki's PNU is pushing to retain 
a powerful, directly elected president as head of state and 
government. They propose a president with the authority to appoint 
and remove the prime minister who would run the day-to-day affairs 
 
NAIROBI 00002666  002 OF 002 
 
 
of government. PNU believes that it is disadvantaged by the current 
constituency-based system and is adamant that the president be 
directly elected. The largest constituency in Kenya is roughly 18 
times the size of the smallest, and most large constituencies are 
in PNU strongholds. This system puts them at a disadvantage as they 
have more voters casting ballots for a small number of MP's, thus 
losing ground in parliament. It is PNU's belief that they would 
receive a majority of votes in a one person-one vote system, and 
want to retain a powerful presidency that could operate with a 
mandate from the people. This proposal largely maintains the status 
quo of the Coalition Agreement reached in February, 2008, but with 
expanded presidential oversight of the prime minister. For further 
analysis of the PNU position, see Cable 2 in this series. 
 
¶8. (SBU) Prime Minister Odinga's ODM prefers a strong prime 
minister elected from parliament. As the current constituency 
system benefits ODM, they would prefer to retain executive power in 
parliament, divided between the prime minister and a cabinet, with 
limited interference from the president. They are pushing for 
safeguards that would prevent the president or the prime minister 
from unseating each other unilaterally. Elements of a Mixed Member 
Proportional system, in which votes are cast for both a member of 
parliament and a preferred ruling party, could serve as a 
compromise position on the method of election if a deal can be 
reached on division of power. For further analysis of the ODM 
position, see Cable 3 in this series. 
 
¶9. (SBU) Both ODM and PNU united to oppose a clause in the draft 
allowing for constituencies to recall their member of parliament 
before the expiration of a term. Independent commentators favor a 
recall provision, but it is not known whether the CoE will yield to 
the wishes of Parliament or push through their own recommendations. 
Legislation governing the drafting process is unclear regarding 
whether the CoE or Parliament has the upper hand to make changes on 
clauses in dispute. 
 
¶10. (SBU) The parties are also discussing a devolution plan that 
would create two levels of local government, each with its own 
assembly and executive structure. There are calls from some in the 
PNU camp to retain the current Provincial Administration system in 
which decisions and budgetary control generally flow from the 
national government. Those in favor of granting expanded powers to 
local government acknowledge that creating executive and 
legislative functions in eight regions and 74 counties is 
cost-prohibitive. Community-based organizations are reporting that 
the devolution issue may resonate with voters more than any other. 
ODM is more amendable to devolution, and PNU could face problems 
attracting marginalized communities if it pushes to retain the 
status quo. A compromise on a single level of local government with 
expanded powers is being discussed. 
 
¶11. (SBU) The judiciary opposes a clause in the draft that forces 
all judges to retire or submit to a vetting mechanism before they 
can be reappointed. Judges are sensitive that other public service 
members do not have to submit to vetting, but public opinion favors 
any measures that would root out corruption. One judge told PolOff 
that many would accept a vetting mechanism if they did not have to 
resign first, amid fears that the already significant judicial 
backlog would become much worse if all judges had to be vetted and 
reappointed. 
 
¶12. (SBU) The inclusion of the Kadhi's courts in the draft 
constitution could be a major point of contention at the time of a 
referendum. The provision maintains the use of the courts only for 
civil issues between Muslims, a system that has been in place in 
Kenya for over 40 years. However, some large Christian-based 
organizations are opposed to the inclusion of the courts, claiming 
the constitution should treat all religions equally. The Seventh 
Day Adventist church will not oppose the courts, while the Catholic 
church has struck a neutral tone. However the powerful National 
Council of Churches of Kenya and some Evangelical and Pentecostal 
groups have threatened to oppose the draft constitution if the 
clause on Kadhi's courts is not removed. 
 
¶13. (SBU) To date, mainstream members of both parties accept the 
inclusion of the Kadhi's courts in the draft. Ultimately the issue 
is a zero-sum game that will depend on political calculations and 
the state of play at the time a referendum is called. Factions 
opposed to other issues in the draft could join anti-Kadhi's courts 
sentiment in order to rally religious communities to oppose a 
referendum. 
RANNEBERGER