This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 004683 
 
SIPDIS 
 
E.O. 12958: DECL: 11/09/2025 
TAGS: PGOV ASEC PREL KDEM ECON KE
SUBJECT: KENYA'S GAMBLE ON A NEW CONSTITUTION UNLIKELY TO 
PAY OFF 
 
REF: A. NAIROBI 4551 
     ¶B. NAIROBI 4143 
 
Classified By: Political Counselor Michael J. Fitzpatrick; Reasons 1.4 
(B&D). 
 
 ¶1. (C)  SUMMARY:  Kenya's November 21 referendum on a 
proposed new constitution risks further polarizing the nation 
along tribal lines, regardless of the outcome.  With the 
"Orange" opposition increasingly confident of victory, the 
stage is being set for continued political standoff if they 
win -- and violent protests if they lose.  END SUMMARY. 
 
¶2. (C)  The ongoing campaign leading to the November 21 
national referendum on a proposed new constitution is only 
secondarily about "how" power is wielded; the real issue is 
"by whom."  Kenya's last national elections in 2002 decided 
who would NOT rule Kenya, with Daniel arap Moi stepping down 
after 24 years of power, but it did not resolve decisively 
who would really hold sway post-Moi.  The Kikuyu tribesmen of 
Mwai Kibaki's NAK/DP (&NAK8) faction came to power by 
creating a National Rainbow Coalition ("NARC") with Raila 
Odinga's LDP party, which is dominated by the Luo people. 
Kibaki became President, but Odinga, who had been promised 
the to-be-created Prime Ministry under the to-be-promulgated 
new constitution, was double-crossed when Kibaki,s 
government failed to promulgate the new constitution. 
Kenya's national politics, and the NARC, have been stalemated 
ever since. 
 
¶3. (C)  Both sides have become increasingly explicit that the 
referendum is less about the text of the proposed 
constitution and more a vote of confidence -- or no 
confidence -- in President Kibaki's continuing 
administration.  Many view the vote as an attempt to ratify 
the NAK's betrayal of the LDP -- and the draft as locking in 
Kikuyu dominance over other tribes.  The fact is not lost on 
anyone that President Kibaki leads the charge for the YES (or 
"Banana") campaign, and Roads and Public Works Minister 
Odinga has joined forces with ex-president Moi's KANU 
opposition to lead the NO (or "Orange") campaign against the 
new draft constitution.  Already, some politicians are 
calling for snap elections if Kibaki fails to obtain approval 
of the new constitution.  And the NO camp increasingly 
believes it will have the numbers to block the new 
constitution at the polls. 
 
------------------------- 
"All politics is tribal" 
------------------------- 
¶4. (C)  The national debate has increasingly turned tribal -- 
and violent.  The killing by police of four persons after an 
October 30 YES rally in Kisumu, Odinga's hometown, was but 
the clearest manifestation (Ref A).  (There is no doubt that 
Orange protestors sought to prevent the Banana rally.  But 
the killings appeared to take place away from the rally site 
-- and after it had concluded.  One autopsy appeared to 
vindicate Orange claims that the dead man had been dragged 
from his house and shot at pointblank range. That the others 
killed were children -- including the uniformed schoolboy son 
of a police official, shot in the back of the head -- added 
to the outrage.)  Tribal politics have surged to the fore, 
with pro- and anti- forces both spreading vicious lies and 
wild gossip about each other.  Information Minister Tuju 
(whose Kisumu rally precipitated the violence) has warned 
tribal radio stations not to encourage incitement -- a la 
Rwanda, 1994.  But the line is a thin one.  The manager of 
KISS-FM, a major Nairobi station (himself a Kalenjin, close 
to ex-President Moi and in the NO camp) has been threatened 
with being pulled off the air -- and his Ghanaian co-manager 
deported -- if verbal criticisms of the YES/Banana campaign, 
and of First Lady Lucy Kibaki, do not cease.  The manager is 
scared for his safety, and that of his family.  Meanwhile, 
pro-Banana Citizen Radio has been accused repeatedly of 
spewing venomous incitement against tribes viewed as opposed 
to the new constitution. 
 
¶5. (C)  Many Kenyans are alarmed by the speed and intensity 
of the turn to tribalism.  Kikuyu communities have circled 
the wagons -- convinced that the Luo and other tribes are 
attempting to use the referendum to rollback Kikuyu gains. 
YES Ministers have publicly accused the United States Embassy 
and the UK High Commission of financing the NO campaign, 
which only bolsters suspicions that we are intent on bringing 
down the Kibaki government.  (Their reason for our alleged 
unhappiness?  Because NARC refuses to be a lapdog for UK 
financial interests.)  A massive get-out-the-vote effort is 
underway in the Kikuyu heartland, in the belief that a large 
and solid YES vote by Kikuyus would be enough to carry the 
day for YES, regardless of Kenya's 40-plus other tribes.  The 
Kikuyu have isolated themselves -- and now risk being seen as 
national spoilers, tribal polarizers, regardless of whether 
Kibaki should win or lose the referendum. 
 
¶6. (C)  The NO campaign is increasingly convinced it will win 
the referendum.  One public opinion poll showed them 10 
points ahead -- but with a quarter of voters still undecided. 
 Another poll has them leading almost 2 to 1.  "The only way 
we can lose," they say, "is if the vote is stolen from us." 
NO campaigners are intensifying efforts to educate 
vote-counters and observers.  The YES camp's continuing 
confusion and disorganization (e.g., it cannot even decide if 
the draft constitution is, or is not, a government proposal) 
suggests the arrogance of incumbency -- and perhaps a bit of 
desperation.  The YES camp is aggressively courting various 
tribes and interest groups with financial incentives -- land 
titles, salary hikes, and revenue streams (Ref B).  While it 
remains unclear just how much such inducements will 
ultimately cost the central treasury, it is also unclear that 
voters are responding positively to the incentives.  There 
are also reports that government trucks have ferried 
truckloads of clubs, machetes and guns to the farm of at 
least one YES parliamentarian in the Rift Valley, a province 
that remains up for grabs between YES and NO campaigners. 
 
------------------ 
What Happens Next? 
------------------ 
¶7. (C)  There is no easy, short-term glide path for Kenya.  A 
narrow margin of victory by either side risks being 
challenged by the losers as an illegitimate theft of popular 
will.  Conventional wisdom has been to hope that whichever 
side wins does so handily, so the results would quickly 
obtain legitimacy and national acceptance.  Another 
oft-whispered scenario has President Kibaki saving face by 
privately signaling for judges to rule against his holding 
the referendum as planned -- and throw the draft text back to 
Parliament for further debate and amendment.  But, despite 
the pending court cases, this option might no longer be 
politically viable.  With the Orange/NO camp now believing 
its own momentum is unstoppable, kicking the text back to 
Parliament would be seen by Kibaki opponents as denying them 
their due and preventing them from killing the draft once and 
for all.  Perhaps anticipating defeat, the YES camp has 
recently begun to deflate the vote's importance as a 
political test of wills. 
 
¶8. (C)  Should there actually be a YES win -- even by a wide 
margin -- the Orange camp is likely to cry fraud and turn to 
popular protest.  (Indeed, some are already making wishful 
comparisons to Ukraine's "Orange Revolution.")  The 
possibility for violence under this scenario is real.   The 
YES forces, emboldened by their win, likely would be quick to 
unleash the security forces against the opposition -- 
especially if talk of "people power" and "regime change" 
fills the air. (Security Minister Michuki, himself a Kikuyu 
campaigning for YES, spoke darkly after Kisumu of maintaining 
the state's monopoly on the use of force.)  But even should 
the Oranges readily accept defeat, the legal system would be 
in for very tough times.  Hundreds of pieces of legislation 
will need to be passed to bring current laws into conformity 
with the new constitution, which is to be promulgated 
December 12 -- yet historically Parliament is incapable of 
passing even a dozen laws a year.  Kenya would thus likely 
face a prolonged period in which all key institutional and 
economic reforms requiring legislation would be stuck in 
legal limbo. 
 
¶9. (C)  Should the NO team win handily, pressure would mount 
for early elections to unseat President Kibaki.  A 
Parliamentary vote of "no confidence" could come as early as 
the first quarter of 2006.  Close to half of all 
parliamentarians are already publicly pro-Orange.  Other 
solons likely would be pressured by their constituents should 
the NO vote carry overwhelmingly despite their own pro-Banana 
stances.  One brake on this possibility is the fact that MPs 
-- of all persuasions -- are generally loath to risk their 
own (lucrative) seats short of a full five-year term.  Even 
if there were no early vote, the campaign for 2007 will have 
begun in earnest.  And with the LDP formally allying with the 
KANU opposition, and riding high after defeating the 
referendum, an already weak President Kibaki will garner 
"lame duck" status.  The prospects for significant political 
progress during the rest of his term on key issues of 
interest to us -- counter-terrorism, anti-corruption, good 
governance, economic reform -- will be similarly reduced. 
BELLAMY