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UNCLAS NAIROBI 004097 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL KDEM PGOV KE
SUBJECT: KENYA ELECTIONS: ELECTORAL COMMISSION CHAIRMAN 
SPEAKS OUT 
 
REF: A. NAIROBI 3998 AND PREVIOUS 
 
     ¶B. NAIROBI 1669 
 
¶1. (SBU)  Summary and Introduction:  The Electoral Commission 
of Kenya (ECK) Chairman Samuel Kivuitu recently prepared a 
speech on the theme "Election 2007: Can Kenya Remain a Model 
for Africa?"  The speech was delivered to the Kenya Alliance 
of Resident Associations by Kivuitu's deputy, as the Chairman 
was ill.  The speech was characteristically frank and 
critical.  Kivuitu took a swipe at the Attorney General's 
office for its attempts to curb the ECK's ability to sanction 
wayward political actors and civil servants, and its refusal 
to take any action of its own to promote correct democratic 
practice.  The speech is repeated here in its entirety. 
Kivuitu's tenure ends on 2 December, just prior to the 
elections.  Kibaki made private assurances that the contracts 
of Kivuitu, his Vice Chair and the six commissioners whose 
terms expire at the end of October would all be renewed to 
allow for continuity during the election period.  However, 
following those assurances, the Vice Chair's contract was 
allowed to expire and the President then named another new 
commissioner.  This is a bad omen as regards the fate of the 
other veteran commissioners.  We have emphasized in public 
and private messages the importance of continuity of ECK 
leadership.  We and other election process donors are 
developing a contingency plan to fill the breach should we 
become convinced that the ECK will not perform its proper 
role.  End Summary and Introduction. 
 
Election 2007: Can Kenya Remain a Model for Africa? 
--------------------------------------------- ------ 
 
¶2. (U) Kivuitu's speech as written follows:  "True the way we 
as Kenyans conducted ourselves during the 2002 general 
elections won applause from many sources all over the world. 
I agree we did well as a nation but was that because we had 
become better democrats or it was just luck?  (God smiled at 
us and we obliged!).  I have tried hard to fathom out which 
of the two was the case (or indeed a combination of the two) 
but I regret I have been unable to find the answer. 
 
¶3. (U) Look at the matter from all perspectives.  Kenyans are 
still tribialist in a very negative way.  They still embrace 
election violence.  Voter bribery is still rampant.  Misuse 
of State resources for electoral victory is still the order 
of the day.  Indeed there is reason to feel concerned that 
public officers will be used to exploit their privileged 
positions in order to advance the election cause of some of 
those in power.  The Electoral Commission is not truly a 
reflection of this nation in terms of composition and the 
manner it is constituted.  ECK's security of tenure is 
illusory.  Political parties have very little chance to 
compete fairly.  In any case their registration can still be 
used as a tool against fair competition at election time. 
All these grave weaknesses have the capacity to derail, to 
imperil, our progress towards democracy.  Until theses are 
resolved in a manner that supports the pursuit for democracy 
our claim, in my view, that we are a a democracy or that the 
2002 general elections put us there is fictitious.  Just as 
we have improved with regard to our respect for freedoms 
which go with democracy we must take steps to correct these 
grave deficiencies.  The potential is there for us to achieve 
success in these fronts because the current Government does 
indeed give hope in that direction and the people of Kenya 
are now far much more enlightened about their political and 
economic rights and have displayed keen interest to protect, 
safeguard and advance these rights.  Indeed the coming 
general elections promise to provide a true barometer as to 
how far we have moved towards the democracy destination. 
 
¶4. (U) ECK is well prepared to conduct these elections, 
thanks to the Government's generous support and that of 
friendly donors like UK, US, Germany, Netherlands, Norway, 
Denmark, Canada, Australia, Finland, Sweden, through the 
United Nations Development Programme (UNDP).  The 
reappointment of the Chairman, the Vice Chairman, and other 
seasoned commissioners of the ECK should not cause too much 
concern since I believe the Government has no intention to 
rock the boat.  My interaction with  higher authorities has 
convinced me that all will be well in the end.  Indeed H.E. 
the President is clearly focused on what he expects at 
election time i.e. peace and tranquillity with properly 
 
managed elections.  Many of the members of the ECK are ready 
and willing to go the extra mile to maintain electoral 
discipline within the political parties, their candidates and 
supporters even if it appears to exceed its restricted 
mandate.  It will rely on the provisions of section 42 A of 
the Constitution of the Republic which empowers it to promote 
free and fair elections.  These provisions must be given a 
meaning.  They must be made to prevail.  Let the judiciary 
condemn ECK for this attitude which it proposes to assume. 
ECK will not purport to be the judiciary and limit or 
restrict its mandate.  That will be left to that learned and 
esteemed institution to judge.  ECK should adopt the 
proactive posture that has made the Indian Electoral 
Commission (with the full support of the Supreme Court of 
India) rein in politicians and civil servants.  That 
Commission is a model election management body (EMB).  ECK 
should emulate it.  Our judiciary should also learn from the 
Supreme Court of India.  Ghana and South Africa are other 
nations with EMB's to emulate.  Democracy is not realizable 
without a strong and supportive judicial bench. 
 
¶5.  (U) ECK would like to appeal to Kenyans to abandon 
negative tribalism, election violence and voter bribery. 
Negative tribalism is repulsive.  It can never support 
democracy.  It leads voters to choose useless leaders just 
because they are our own.  Useless leaders will always be a 
curse to a country.  God brought us all to this beautiful 
land to live together.  Tribialists commit the heinous crime 
of contempt of our great God when they appear to challenge 
His arrangements and schemes.  Election violence is painful - 
it hurts democracy severely.  So is bribery.  All these vices 
lead to the election of inefficient, ineffective and bogus 
leadership.  Any politician who advocates or practices any of 
these vices should be avoided like a witch. 
 
¶6. (U) ECK earnestly urges Kenyans to support its efforts to 
conduct the elections fairly and freely, competently and 
efficiently.  All registered voters have a duty to vote out 
useless leadership and to elect leadership that is honest and 
democratic -- leadership that will bring about stability, 
unity and prosperity." 
 
Comment: Seeking ECK Continuity, But Contingency Plans Afoot 
--------------------------------------------- --------------- 
 
¶7. (SBU) Kivuitu is the real deal.  He sincerely believes in 
a fair and transparent administration of the electoral 
process.  That said, the ECK is largely toothless, and 
Kivuitu is in ill health.  During the pre-electoral campaign 
period, it has no official standing to curb abuses.  Once the 
official campaign begins, upon the formal dissolution of 
parliament, ECK has more authority and receives a detachment 
of police to enforce its dictates, but is still hampered by 
an ill-defined role in sanctioning campaign abuses.  On 
election day itself, the ECK has been able to enforce 
balloting rules, and did so credibly in the most recent 
general election and subsequent by-elections.  The ECK makes 
decisions by consensus.  The Chairman is merely prima inter 
pares. 
 
¶8. (SBU) An agreement between the opposition political 
parties (including Kibaki's Democratic Party) and the then 
ruling party in the run up to the 1997 elections called for 
naming ECK commissioners through an informal consensual 
process.  This agreement was never codified in law.  Kivuitu 
was appointed to ECK under this consensual procedure, which 
the Moi regime faithfully observed.  However, under the law, 
the President has sole authority to name members of the ECK, 
who then serve for a fixed period by contract.  President 
Kibaki has appointed several new commissioners over the last 
year without inter-party consultations, thereby observing the 
letter of the law but ignoring the inter-party handshake 
agreement that he had helped negotiate when in the 
opposition.  The most recent by-election, in March 2007, was 
handled in a responsible manner, but some observers worry 
about Kivuitu's ability to maintain ECK's high standards 
during the upcoming general election given the very high 
stakes and the majority of unilateral Kibaki-appointed ECK 
commissioners.  Recently, the Vice Chairman's contract was 
allowed to expire.  The President then named another new 
commissioner. 
 
¶9. (SBU) Ref B details USG support to the Kenyan electoral 
process, including strengthening of the ECK.  We have 
emphasized in public and private messages the importance of 
continuity of ECK leadership.  We are developing a 
contingency plan along with other election process donors to 
fill the breach should we become convinced that the ECK will 
not perform its proper role. 
SLUTZ