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INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6268
RUEHDJ/AMEMBASSY DJIBOUTI 5504
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RUZEFAA/CDR USAFRICOM STUTTGART GE
RUZEFAA/HQ USAFRICOM STUTTGART GE

UNCLAS SECTION 01 OF 02 NAIROBI 002851 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV KDEM PHUM KE
SUBJECT: PARLIAMENT AMENDS CONSTITUTION, OUSTS ELECTORAL 
COMMISSION 
 
REF: A. NAIROBI 2747 
     ¶B. NAIROBI 2221 
     ¶C. NAIROBI 1698 
 
------- 
 SUMMARY 
 ------- 
 
¶1.  Parliament on December 16 passed the Kenya Constitution 
Amendment Bill of 2008 (the Amendment).  The Amendment 
follows the recommendations of the Kriegler Commission 
(Reftel B) and abolishes the Electoral Commission of Kenya 
(ECK), which was widely discredited for its mishandling of 
Kenya's 2007 general elections. It also removes the ECK's 22 
commissioners from office.  The Amendment creates an Interim 
Electoral Commission (IEC) to prepare the groundwork for, and 
administer, a referendum on a new constitution.  Passage of 
the Amendment was delayed by nearly one week as Parliament 
demanded that it play a lead role in nominating IEC 
commissioners and that nearly 600 ECK staff be absorbed into 
the civil service.  We expect President Mwai Kibaki to sign 
the Amendment into Law.  Passage of the Amendment completes 
the legislative framework that is a prerequisite for writing 
a new constitution.  Parliament earlier this term passed a 
Bill outlining the roadmap to a new constitution (Reftel C), 
one of key tasks facing the Grand Coalition government, which 
President Kibaki has signed into law.  The Ambassador met 
with the Minister of Justice, National Cohesion, and 
Constitutional Affairs on December 19 to indicate that we are 
willing to consider providing electoral support. The Minister 
was receptive in principle, and we are following up with her 
team. End Summary. 
 
------------- 
THE AMENDMENT 
------------- 
 
¶2.  Parliament passed the Kenya Constitution Amendment Bill 
of 2008 (the Amendment) on December 16. The Amendment 
abolishes the Electoral Commission of Kenya (ECK), which was 
widely discredited for its mishandling of Kenya's 2007 
general elections, and removes the ECK's 22 commissioners 
from office.  It provides that the nearly 600 regular ECK 
staff will be absorbed into the civil service.  The ECK will 
be replaced by an Interim Electoral Commission (IEC).  The 
IEC will be a leaner body of between five and nine 
commissioners.  It is tasked with administering the national 
referendum on a new constitution, a key pillar of the 
National Accord and Reconciliation Act of 2008.  The IEC is 
also tasked with updating and correcting the voters' 
register, which the Kriegler Commission criticized for being 
inaccurate and contributing to voter fraud (Reftel B).  IEC 
commissioners will be appointed after a public application 
process overseen by a Parliamentary Select Committee (PSC). 
The IEC will operate for no more than 15 months or until it 
organizes the referendum on a new constitution, whichever 
comes first. 
 
¶3.  The Amendment also establishes an Independent Boundaries 
Review Commission to redraw constituency boundaries to reduce 
disparities in the number of registered voters per 
parliamentary constituency (Note: Kenya's smallest 
parliamentary constituency in terms of the number of 
registered voters has approximately 10,000 voters.  The 
largest has approximately 150,000 voters.  End Note.)  The 
members of the Boundaries Commission will also be chosen 
after a public application process overseen by the PSC.  The 
Amendment also creates an Independent Constitutional Dispute 
Court to handle any legal disputes arising from the 
constitutional referendum.  The President will make 
appointments to the IEC and Boundaries Review Commission in 
consultation with the Prime Minister.  The President will 
appoint members of the Dispute Resolution Court in 
consultation with the Prime Minister and the Chief Justice. 
 
------------------------- 
PARLIAMENT DEMANDS A ROLE 
------------------------- 
 
¶4.  Passage of the Amendment was delayed by Parliament's 
demands that it lead the nomination process for commissioners 
of the IEC and the Interim Boundaries Review Commission.  The 
Amendment initially envisioned that the so-called Serena team 
(eight Cabinet Ministers who negotiated the National Accord 
 
NAIROBI 00002851  002 OF 002 
 
 
and Reconciliation agreement that ended Kenya's post-election 
crisis) would nominate IEC commissioners.  A bloc of Members 
of Parliament (MPs) were also adamant that the nearly 600 ECK 
staff should not be fired along with the ECK Commissioners. 
A bloc of MPs stated that they would vote the Amendment down 
if these demands were not met.  (Note: Rules of Parliament 
forbid legislation that is defeated in a floor vote from 
being reintroduced for six months.  If the Amendment had been 
defeated, constitutional reform would have been seriously 
delayed.  End Note.)  President Kibaki and Prime Minister 
Raila Odinga held three informal meetings with MPs to find a 
compromise solution.  Ultimately, the government agreed that 
the PSC would oversee the nomination of commissioners and 
that regular ECK staff would be absorbed into the civil 
service, allowing Parliament to adopt the Amendment before it 
recessed for the holidays. 
 
------------------------ 
ECK TO CHALLENGE SACKING 
------------------------ 
 
¶5.  Local media have reported that the ECK commissioners 
intend to file a lawsuit challenging their dismissal.  They 
will argue that Parliament had no right to fire the 
commissioners through a constitutional amendment, but that it 
should have convened individual tribunals for each of the 22 
commissioners to determine whether they had committed 
offenses that could justify the dismissal of individual 
commissioners.  This challenge is unlikely to succeed, as 
Parliament appears to have properly exercised its legislative 
powers to amend the constitution.  (Comment:  ECK 
Commissioners, if they had not been fired, would have earned 
between USD 4,000-6,000 per month, plus allowances over the 
next 4 years.  Thus, ECK commissioners are likely filing this 
lawsuit to give them leverage to seek a financial settlement 
from the government rather than in expectation of 
successfully defending their jobs.  End Comment.) 
 
------- 
COMMENT 
------- 
 
¶6.  The ECK's dismal performance in the 2007 elections 
required that it be disbanded.  President Kibaki's firm 
support for electoral reform gives us confidence that he will 
sign the Amendment into law.  We welcome the move to replace 
the ECK with a body whose commissioners will be selected 
through a transparent application process, which is an 
improvement over the "gentlemen's agreement" which previously 
governed the appointment of ECK commissioners.  (Note: 
Traditionally the President was required only to "consult" 
with the opposition in selecting commissioners. However, 
President Kibaki appointed commissioners preceding the 2007 
general elections without consultation.  End Note.) End 
Comment. 
RANNEBERGER