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

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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