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UNCLAS SECTION 01 OF 02 NAIROBI 000869 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: INDEPENDENT REVIEW COMMISSION SET TO BEGIN REVIEW 
OF 2007 ELECTIONS: ECK FEELING THE PRESSURE 
 
REF: NAIROBI 792 
 
------- 
 SUMMARY 
 ------- 
 
¶1.  As part of their historic February 28 power-sharing deal, 
the Party of National Unity (PNU) and Orange Democratic 
Movement (ODM) agreed to form an Independent Review Committee 
(IREC) to undertake a top-to-bottom review of Kenya's flawed 
2007 elections.  Commissioners and a Chair, South African 
judge Johan Kriegler, have been selected and began work on 
March 20.  Quick action to form the IREC bodes well for 
Kenya's efforts to deal seriously with the causes of the 
recent crisis, but key issues remain to be resolved, such as 
the rules of procedure and the level of transparency of 
decision-making within the Committee.  The resolution of 
these will, in large measure, determine whether IREC can 
fulfill the high expectations of the Kenyan public to get to 
the bottom of the 2007 elections and deliver recommendations 
for real change.  Of more immediate concern, however, is 
whether IREC will somehow force the resignation of the 
discredited Electoral Commission of Kenya (ECK) before six 
parliamentary bi-elections are to be held.  End summary. 
 
--------------------------------------------- ------ 
The Independent Review Committee - up and running 
--------------------------------------------- ------ 
 
¶2.  IREC is a mixed, non-judicial body comprised of seven 
Commissioners - four Kenyans and three internationals.  The 
Chairman of IREC, Johan Kriegler, is a judge and former head 
of the South African Electoral Commission.  In that capacity, 
he oversaw South Africa's first post-apartheid elections.  He 
later worked as an adviser to Sierra Leone's Electoral 
Commission.  PNU and ODM each nominated two of the Kenyan 
commissioners.  The parties agreed on Justice Imani Daudi 
Aboud, a Tanzanian Judge and Horacio Boneo, an Argentine 
electoral expert, to round out the commission.  Kriegler 
arrived in Nairobi on March 19.  He and the other 
Commissioners were sworn in by Kenya's Chief Justice on March 
¶20. 
 
¶3.  IREC is tasked to undertake a comprehensive review of the 
flawed 2007 elections.  This includes identifying weaknesses 
and inconsistencies in Kenya's electoral legislation, and 
investigating all aspects of the ECK's performance (including 
its structure, composition and management systems) during the 
conduct of the 2007 elections.  It will propose 
recommendations on electoral reform, which are expected to 
include constitutional, legislative, operational and 
institutional measures.  Although it has no power to punish 
wrongdoing related to the 2007 elections, it can propose 
accountability mechanisms for ECK Commissioners and staff 
related to electoral malpractices.  IREC is expected to 
deliver its report to the Panel of Eminent African 
Personalities within 3-6 months, with publication of the 
report to follow within fourteen days of delivery.  Under the 
Annan-led mediation agreement, IREC's recommendations are to 
be factored into long-term electoral, legal, and 
constitutional reform expected to flow from Agenda point 4 of 
the negotiations. 
 
¶4.  IREC is hiring investigators and counsel and beginning 
work to decide its procedural and evidentiary rules.  IREC 
hearings are expected to be public, although the Commission 
has the discretion to order private hearings if needed to 
gather testimony or allay fears of reprisal for testimony 
given.  The Committee will be funded by the Government of 
Kenya (GOK) and the Trust Fund for National Dialogue and 
Reconciliation, which includes support from the U.S. and 
other donor states. 
 
---------------------- 
ECK FEELS THE PRESSURE 
---------------------- 
 
¶5.  As IREC starts up its operation, the ECK is under 
increasing pressure.  IREC has met with ECK officials to 
gather preliminary information on ECK's organizational 
structure and management systems.  When its hearings begin, 
IREC is expected to call many, if not all, of the ECK 
 
NAIROBI 00000869  002 OF 002 
 
 
Commissioners to testify regarding the elections, focusing on 
the tallying of the presidential election results.  In 
increasingly strident tones, media and civil society also 
have called for the entire ECK to resign.  ECK has resisted 
all such calls. 
 
¶6.  The ECK recently decamped to a five-star resort in 
Mombasa to conduct an in-house review of its performance in 
the election.  This was widely interpreted as an attempt by 
the ECK to get its story straight before Commissioners are 
called to testify before IREC, according to our contacts. 
Coincidentally, the National Civil Society Congress (NCSC), 
an umbrella group for Kenyan civil society organizations, was 
holding a conference in the same resort.  When NCSC activists 
learned that the ECK was in the same hotel, they stormed the 
ECK gathering, demanding that the ECK Commissioners resign. 
This caused a melee and police were called to intervene.  In 
the aftermath, ECK Chairman Samuel Kivuitu claimed that 
important files went missing which would impact the 
Commission's ability to present evidence to IREC.  (NOTE: The 
NCSC publicly ridiculed the disgraced ECK's expenditure of 
taxpayer money on a five-star hotel -- an extravagance the 
NCSC could only afford through all its hard-earned donor 
funding. END NOTE.)  Later during ECK's visit to Mombasa, 
ordinary citizens heckled Kivuitu with demands for his 
resignation as he left a restaurant.  The media widely 
covered these events, fanning already wide public resentment 
toward the ECK. 
 
¶7.   In another attempt by the ECK to get its story straight, 
the Secretary of the ECK on March 26 issued a memo ordering 
all Commissioners to file reports explaining their role in 
the tallying process.  While the ECK presented this as an 
effort to assist the ECK in making its submission to IREC, 
ODM deputy leader Musalia Mudavadi stated ODM's opposition to 
the move, calling it an attempt to conduct a parallel inquiry. 
 
------- 
COMMENT 
------- 
 
¶8.   The quick stand-up of the IREC is an important step. 
The public, media, and civil society have made increasingly 
strident calls for the ECK's resignation due to ECK's role in 
the flawed 2007 presidential elections (which sparked 
violence causing 1,200 deaths and 500,000 displaced persons). 
 There are grave doubts whether the current ECK has the 
credibility to conduct elections for the six Parliamentary 
seats that remain vacant.  Recently, the Speaker of 
Parliament decided to delay issuing writs declaring the seats 
vacant.  Declaring the seats vacant would require 
by-elections to be organized by the ECK within 90 days.  The 
expected public testimony of ECK Commissioners before the 
IREC may determine whether the ECK in its current composition 
is able to conduct the by-elections.  End Comment. 
RANNEBERGER