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### Viewing cable 08NAIROBI2551, POST-ELECTION VIOLENCE COMMISSION REPORT:

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
08NAIROBI2551 | 2008-11-04 14:02 | 2011-03-14 21:09 | CONFIDENTIAL | Embassy Nairobi

`

    VZCZCXRO2682
    PP RUEHROV
    DE RUEHNR #2551/01 3091409
    ZNY CCCCC ZZH
    P 041409Z NOV 08
    FM AMEMBASSY NAIROBI
    TO RUEHC/SECSTATE WASHDC PRIORITY 7531
    INFO RUCNIAD/IGAD COLLECTIVE
    RUEHDS/AMEMBASSY ADDIS ABABA 0295
    RUEHDR/AMEMBASSY DAR ES SALAAM 6150
    RUEHKM/AMEMBASSY KAMPALA 3023
    RUEHKH/AMEMBASSY KHARTOUM 2205
    RUEHLO/AMEMBASSY LONDON 2954
    RUEHFR/AMEMBASSY PARIS 2848
    RHMFISS/CDR USCENTCOM MACDILL AFB FL
    RHMFISS/CJTF HOA

` `

    C O N F I D E N T I A L SECTION 01 OF 04 NAIROBI 002551

    SIPDIS

    E.O. 12958: DECL: 10/29/2018
    TAGS: PREL PHUM PGOV KDEM KE
    SUBJECT: POST-ELECTION VIOLENCE COMMISSION REPORT:
    POLITICIANS DIVIDED OVER IMPLEMENTATION

    REF: A. NAIROBI 2401
         ¶B. NAIROBI 2366
         ¶C. NAIROBI 1838 AND OTHERS

    Classified By: Ambassador Michael Ranneberger for reasons 1.4 (B and D)

    -------
     SUMMARY
     -------

    ¶1.  (U) Two weeks after release of the Commission of Inquiry
    into Post-Election Violence (CIPEV) report (refs A and B),
    Kenya's political leaders continue to publicly grapple with
    fallout.  Of particular contention is whether to implement
    the report's recommendations for a special tribunal to try
    high-level organizers of post-election violence.  President
    Mwai Kibaki and Prime Minister Raila Odinga have consistently
    called for implementation of the report.  Kibaki's Party of
    National Unity (PNU) has yet to take a position on the
    report, though indications are that there is serious
    resistance.

    ¶2. (U) On October 30, the Parliamentary Group of Odinga's
    Orange Democratic Movement's (ODM) rejected the report.  75
    of 102 ODM MPs attended the meeting and concluded that it
    contains "incurable errors", creating a serious obstacle to
    passage of the report in parliament.  This opens the
    possibility of a challenge to Odinga's leadership or split in
    ODM.  The ODM backlash is led by Rift Valley MPs, while
    Central Kenya MPs are hesitant to support Kibaki's call for
    implementation of the report.  Media speculation about the
    names of the ten suspects mentioned (but not named) in the
    report is rife.  High-level politicians from both sides of
    the Grand Coalition government are presumed to be among the
    ten, including key political allies of Kibaki and Odinga,
    such as Deputy Prime Minister Uhuru Kenyatta (PNU) and
    Agriculture Minister William Ruto (ODM); each has issued
    defensive statements challenging the sufficiency of evidence
    linking them to violence.

    ¶3. (U) Kibaki and Odinga appear willing to push the issue
    forward despite the risk it poses to these allies; a Cabinet
    retreat is planned to try to find common ground on the
    report.  Even if Cabinet adopts the report, PNU will need
    time to get its MPs to support implementation, while ODM will
    need to restart discussions after a large majority of its MPs
    rejected the report.  To bring MPs along, Kibaki and Odinga
    will need to compromise; opponents of implementation will try
    to dilute the independence of the proposed special
    tribunal.  Agreement is likely to be found if only to avoid
    the prospect that the International Criminal Court asserts
    jurisdiction over Kenyans.  Despite the challenges, Odinga
    told the Ambassador on October 27 that he is confident that
    the report will be implemented.  We will continue to push for
    implementation through a Kenyan mechanism, as called for in
    the CIPEV report to assure accountability in line with
    Assistant Secretary Frazer's public statement of October 29.
    Clear statements by the U.S. and Annan on the need to carry
    out fundamental reforms and end impunity are playing a
    catalytic role to mobilize civil society, the private sector,
    and media.  End Summary.

    ---------------------
    Implementation Issues
    ---------------------

    ¶4. (U) Since the Commission of Inquiry into Post-election
    Violence (CIPEV - also known as the Waki Commission) released
    its report on October 15, Kenyan politics has been dominated
    by discussion of the report's conclusions and its political
    and legal implications.  The report called for sweeping
    reform of the police services and the establishment of a
    special tribunal with strong international participation to
    try high-level organizers and financiers of post-election
    violence (ref a).  Kenya's political leaders have a long
    history of inaction on recommendations of previous
    commissions of inquiry.  However, their hand has been forced
    by the Waki Commission's decision to give Kofi Annan the
    names of ten high-level organizers of post-election violence
    for referral to the International Criminal Court (ICC) if
    Kenya fails to establish the special tribunal.  CIPEV
    Chairman, Justice Philip Waki, has publicly stated that the
    names will be submitted to the ICC Prosecutor if no action is

    NAIROBI 00002551  002 OF 004

    taken by February 28, 2009.  With Kenya now facing a
    deadline, debate is raging is whether or not to implement the
    report. Kenya's political leaders are divided on the degree
    and manner of implementation of the CIPEV report.

    -------------------
    Frantic Speculation
    -------------------

    ¶5.  (SBU) The Kenyan media has been frantically speculating
    about which high-level figures are among the ten suspects
    mentioned (but not named) in the CIPEV report.  Some
    high-level political figures who have been subject to
    speculation as possible indictees are:

    -- William Ruto, Minister of Agriculture, Orange
    Democratic Movement (ODM)
    -- Uhuru Kenyatta, Deputy PM, Minister of Trade Party
    of National Unity (PNU)
    -- George Thuo, MP Juju,  PNU Parliamentary Whip
    -- Zakayo Kipkemoi Cheruiyot, MP Kuresoi (ODM)
    -- Isaac Kiprono Ruto, MP Chepalungu (ODM)
    -- Franklin Bett, MP Buret (ODM)
    -- Cyrus Jirongo, MP Lugari (Kaddu - not affliated
    with either PNU or ODM)
    -- Fred Kapondi,  MP Mt. Elgon (ODM)
    -- Kabando wa Kabando, MP Mt. Mukurweini (PNU)
    -- Simon Nyachae, ex-MP, FORD-K (PNU-affiliated)
    -- Ruben Ndolo, ex-MP, ODM

    ¶6. (SBU) William Ruto is widely suspected of being a key
    organizer of post-election violence in Rift Valley Province,
    as are Cheruiyot, Isaac Ruto, and Franklin Bett.  The PNU
    figures on the list have been implicated as having either
    planned, supplied, or provided transport to members of the
    ethnic Kikuyu Mungiki criminal organization to execute
    revenge attacks against non-Kikuyu in Naivasha and Nakuru in
    mid-January 2008.  The big fish in this equation, William
    Ruto and Uhuru Kenyatta, have had different reactions to the
    speculation.  While Ruto has sought to call into question the
    credibility of the report by calling it a collection of
    hearsay and not worth the paper it is written on.  He
    initially also stated that he is not afraid to go before a
    tribunal to clear his name.  Uhuru Kenyatta has been even
    more defensive and strident in trashing the report.  PNU Whip
    George Thuo has proclaimed his innocence, but accepts that
    the report should be implemented.

    ----------------------------
    Call for Full Implementation
    ----------------------------

    ¶7. (U) President Kibaki and Prime Minister Odinga have
    consistently called for the full implementation of the CIPEV
    report.  Initially, they planned to table the CIPEV report at
    a Cabinet meeting set for October 30.  However, this was
    postponed because President Kibaki opened the IGAD summit
    taking place in Nairobi that day.  Kibaki and Odinga have
    planned a Cabinet retreat, at which the CIPEV report will be
    discussed.  We do not expect this retreat to result in
    Cabinet adoption of the report, but it shows that Kibaki and
    Odinga are moving the issue forward.  We understand that the
    Cabinet will debate the report at its next scheduled meeting
    on November 13.

    --------------------------
    Will their parties follow?
    --------------------------

    ¶8. (U) Kibaki's Party of National Unity (PNU) has not yet
    taken a firm stand on the CIPEV report.  However, indications
    are that Odinga will have a hard time bringing his Orange
    Democratic Movement (ODM) to support his call for full
    implementation of the report.  On October 30, the ODM
    Parliamentary group rejected the CIPEV report.

    ¶9.  (C) PNU has not yet come to a unified position on
    implementation. Some key figures, such as Minister of Justice
    Martha Karua, call for full implementation, while others have
    taken a more cautious approach.  PNU Central Province
    coordinator (and Kinangop MP) David Ngugi told poloff that
    PNU regional leaders agreed that the report should be
    implemented, but that it must be handled cautiously because

    NAIROBI 00002551  003 OF 004

    of the inflammatory nature of the charges likely to be
    leveled against Kikuyu leaders.  (Comment: Many Kikuyus feel
    that Kikuyu leaders implicated in post-election violence were
    engaging in self-defense and should not be equated with Rift
    Valley organizers, who engaged in unprovoked violence. End
    Comment).

    ¶10. (C) Ngugi also noted that PNU feels obliged to protect
    Uhuru Kenyatta, who many see as the next leader of the GEMA
    (the ethnic Kikuyu, Embu, and Meru) political grouping and a
    future president of Kenya.  A meeting of the GEMA-dominated
    Central Kenya Parliamentary (CPK) group called by Uhuru
    Kenyatta and the Minister of Energy, Kiraitu Murungi,
    criticized
    the Waki Report for conducting a partial investigation It
    concluded that the Report must be amended for parliament to
    approve it.  Kenyatta issued a public statement opposing the
    full implementation of the CIPEV report.

    ¶11.  (U) Those calling for a go-slow approach in both ODM and
    PNU accuse those seeking full implementation of the report as
    attempting to settle political scores against rivals who are
    potentially implicated in post-election violence.  There may
    be some element of truth in these charges --  certainly
    Martha Karua's 2012 presidential bid would be helped if Uhuru
    Kenyatta were to face trial.  Likewise, Odinga (and Mudavadi)
    would benefit from a potential trial of William Ruto --  a
    potential rival whose future would be severely
    diminished.  But it stretches the truth to suggest that
    support for implementation is solely motivated by these
    short-term political considerations.  Kibaki, in his last
    term, does not need to worry about future political rivals.
    He and Odinga seem to be motivated by the need to address
    post-election violence to move the country forward.  For her
    part, Martha Karua has been a proponent of ending Kenya's
    culture of impunity since her days leading the fight for
    multi-party democracy in the 1990s.

    ----------------------
    Public sentiment mixed
    ----------------------

    ¶11.  (U) Many in Kenyan society have emphasized the need for
    a forward-looking response to the crisis, focusing on
    restorative, not retributive, justice.  They stress the need
    to complete Kenya's healing by using the reform processes
    laid out in Agenda Point 4 of the National Accord and
    Reconciliation Agreement to prevent a recurrence of violence.
     There is, however, a growing chorus urging implementation.
    This is evident in prominent media editorials and commentary,
    statements by religious groups, among others.  Kenyan human
    rights and governance organizations support full
    implementation of the report to bring justice for the
    victims, but also see establishment of a special tribunal as
    a key step towards breaking the culture of impunity that
    remains largely undiminished among Kenya's elite.  Statements
    by Assistant Secretary Frazer, the Ambassador, and Kofi Annan
    have played an important role to energize these groups - who
    were also key in resolving the post-election crisis.

    -------
    Comment
    -------

    ¶12.  (U) The ODM Parliamentary Group's rejection of the
    report, while certainly serious, does not necessarily mean
    the end of the line for the report.  It will, however, force
    Odinga to seriously reevaluate his position and make him more
    inclined to seek compromise to regain his party's
    support on the issue. Kibaki, too, must work to get his
    supporters to agree on a way forward.  We will urge Kenya's
    leaders to implement a Kenyan solution to hold organizers of
    post-election violence accountable.

    ¶13.  (U) The threat of Kenyans being tried by the ICC is
    powerful leverage to influence Kenya's leaders to implement a
    mechanism to hold accountable alleged organizers of
    post-election violence, even if they vary from the report's
    special tribunal proposal.  Those opposed to establishing a
    special tribunal are likely to try to dilute the tribunal's
    independence, and will use nationalist arguments to remove
    the strong international presence proposed for the tribunal's
    trial and investigative branches.  Their goal will be to

    NAIROBI 00002551  004 OF 004

    create a body more acceptable to Kenyan nationalist
    sensibilities, but which might also allow high-powered
    suspects to feel they have a better chance to manipulate the
    process and beat charges.  End Comment
    RANNEBERGER

`