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UNCLAS NAIROBI 005183 
 
SIPDIS 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: KDEM PGOV KE
SUBJECT: SENATOR FEINGLOD TOLD OF CHALLENGES TO KENYA'S 
ELECTORAL PROCESS AND HUMAN RIGHTS RECORD 
 
REF: A. NAIROBI 3973 
     ¶B. NAIROBI 3679 
 
¶1.  (SBU) Summary and Comment:  Top electoral and human 
rights officials confided to Senator Feingold the numerous 
challenges facing the independence of their institutions. 
The Electoral Commission of Kenya highlighted the limitations 
on their ability to penalize electoral malpractices, while 
the Kenyan National Commission on Human Rights cited 
politically motivated corruption charges and control over 
their finances as government tools to silence its critics. 
The Senator's diplomatic show of support to both of these 
beleaguered institutions gives a much needed boost to their 
efforts to promote human rights, including a free and 
transparent electoral process.  End Summary and Comment. 
 
¶2. (U) Senator Russell Feingold, staffer Grey Frandsen, 
Polcouns, and Poloff visited the headquarters of the 
Electoral Commission of Kenya (ECK) on November 28 and met 
with top electoral officials at a time when the credibility 
and independence of the institution is under threat.  ECK 
Chairman Samuel Kivuitu, joined by three other commissioners, 
highlighted the difficulties facing the institution regarding 
the upcoming national elections, anticipated to be held late 
¶2007.  Senator Feingold applauded the ECK's successful 
management of the 2002 general elections. 
 
Electoral Shenanigans Difficult to Discourage 
--------------------------------------------- 
 
¶3. (SBU) When asked by Senator Feingold about what the 
Commission is doing to respond to allegations of misconduct 
during the July by-elections, including misuse of government 
resources and flat-out bribery by politicians and their 
supporters (ref A), ECK chairman Kivuitu said that the ECK 
was very concerned about the allegations and had received 
three separate reports documenting allegations of 
irregularities.  He said he even received a call the day of 
the polling from a distraught ECK commissioner who had 
witnessed first hand misconduct by senior political leaders 
in broad daylight.  However, he complained that the ability 
of the ECK to take action to redress electoral malpractices 
is severely constrained.  Kivuitu lamented that the ECK's 
hands were tied to impose serious consequences for misconduct 
such as to nullify or delay election results.  While in 
theory, the ECK could take such action, in practice it is 
nearly impossible under current regulations.  According to 
Kivuitu, to delay or nullify the results, the ECK must 
present concrete evidence of the wrongdoing to a High Court, 
which may be several hours drive from the location of the 
alleged electoral malpractices, before the close of the polls 
-quite a Herculean feat under even the most favorable of 
circumstances.  At best, the tools available to the ECK allow 
them to reprimand and/or fine wrong-doers.  Kivuitu stated 
that he and other commissioners have been agitating for 
change to these provisions, but was pessimistic about 
achieving the changes through law due to the paralyzing 
effect of political wrangling on law-making in Parliament. 
 
¶4. (SBU) Kivuitu explained that the allegations contained in 
the three reports are being extensively reviewed and analyzed 
by the committee on the electoral code of conduct.  Kivuitu 
suggested that the ECK's response in this instance might be 
to call a press conference and name and shame the culpable 
parties, to drive home the point that misuse of state 
resources and illegal inducements to voters is wrong and will 
not be tolerated.  (Note: Kivuitu did not suggest fines as an 
option in this case, perhaps acknowledging the significant 
obstacles to taking tougher action posed by certain members 
of the ECK who are allied with the political parties accused 
of the misconduct.  End Note.) 
 
¶5. (SBU) The ECK's limited ability to impose penalties for 
electoral violations is compounded by the composition of the 
Commission.  Currently, commissioners are appointed to 
represent political interests, i.e., government or 
opposition, and these loyalties undermine the independence of 
the commission and its ability to take disciplinary action, 
according to Kivuitu.  The ECK Chairman stressed that it is 
of paramount importance that the Commission be perceived by 
all Kenyans to be objective.  Kivuitu stated that the 
credibility of the institution would be adversely affected if 
 
proposed changes (including changes to the composition of the 
ECK in the Elections Bill currently before Parliament) to the 
ECK were adopted so close to the general election. 
 
Critical Human Rights Body 
Defiant Despite "Corruption Whip" 
--------------------------------- 
 
¶6. (SBU) Senator Feingold followed his visit to the ECK with 
a call on the headquarters of the beleaguered Kenya National 
Commission on Human Rights (KNCHR). The Chairman of KNCHR, 
Maina Kiai, expressed his appreciation for the Senator's 
visit and the continued support of the U.S. Embassy.  The 
KNCHR, and Kiai in particular, has been very outspoken in its 
criticism of the government on human rights, corruption, and 
even the misuse of state resources in political campaigns. 
(Note: the KNCHR's report on electoral abuses during the July 
by-election is among the reports currently being reviewed by 
the ECK. End Note.)  Kiai, who has been the victim of 
allegations of corruption, widely believed as a result of his 
outspokenness (ref B), accused the government of brandishing 
the "corruption whip".  He explained that under the previous 
regime, accusing opponents with "sedition" was a favored tool 
to silence critics.  He said that the current administration 
has replaced "sedition" with "corruption", with the intent of 
having equal effect in silencing the government's perceived 
opponents. 
 
¶7. (SBU) The KNCHR Chairman explained that the current 
funding structure also poses a direct threat to the KNCHR's 
independence.  Unlike the Kenya Anti-Corruption Commission, 
which is funded directly from the Treasury, the KNCHR 
receives its funds through the Ministry of Justice and 
Constitutional Affairs.  Kiai stressed the inherent conflict 
of interests in bestowing the power of the purse to an 
institution over which the KNCHR has a mandate to exercise a 
watchdog function. 
 
U.S. Support for Balancing Human 
Rights and the Counter-Terrorism Agenda 
--------------------------------------- 
 
¶8. (SBU) Senator Feingold expressed his support for the 
efforts of the KNCHR to ensure that provisions of the 
proposed Anti-Terrorism legislation adequately balances the 
protection of human rights and national security concerns. 
Feingold's explanation of his objections to the U.S. Patriot 
Act were well received by the human rights audience and his 
emphasis that while counter-terrorism and security are top 
U.S. priorities, the safeguarding of human rights is 
essential.  This message that enhanced security and the 
protection of human rights are not necessarily mutually 
exclusive is a timely and welcomed addition to the pubic 
debate in Kenya over the controversial Anti-Terrorism 
legislation. 
 
 
 
 
 
 
 
 
 
 
 
 
 
RANNEBERGER