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C O N F I D E N T I A L SECTION 01 OF 03 NAIROBI 000823 
 
SIPDIS 
 
AF/E for SDriano 
 
FROM THE AMBASSADOR 
 
E.O. 12958: DECL: 04/27/2019 
TAGS: PREL PGOV KDEM KE
SUBJECT:  Crisis in Coalition Government 
 
REF:  (A) Nairobi 744 (B) Nairobi 785 
 
CLASSIFIED BY AMBASSADOR MICHAEL E. RANNEBERGER REASONS 1.4 (B,D) 
 
¶1. (C) Summary:  Although in mid-April meetings between President 
Kibaki, Prime Minister Odinga, and their teams held out prospects to 
resolve differences which had troubled the coalition, another serious 
crisis threatens its existence.  The crisis developed at the end of 
last week when Prime Minister Raila Odinga objected to President 
Kibaki's appointment of Vice President Kalonzo Musyoka as leader of 
government business in the recently re-opened parliament.  The 
situation was exacerbated when Musyoka submitted a list of members of 
Parliament to serve on the House Business Committee which sets 
parliament's agenda, nominating himself as Chair.  Odinga feels that 
his position as equal partner in the Grand Coalition government 
entitles him to both positions.  This is a winner-take-all type of 
fight because both positions are both highly symbolic and important. 
I met with Speaker of Parliament Marende on April 27, and he said 
that he will likely make a ruling that will not take the side of 
either party.  He will likely constitute the parliamentary business 
committee, and let Parliament elect the head of the committee 
(possibly Marende himself), and will avoid the question of who is 
leader of government business.  (The leader of government business 
does not need to be the head of the parliamentary business 
committee.)  This will keep Parliament functioning while providing 
more time for the two sides to work out the issue of who will be 
leader of government business.  I spoke to Kofi Annan on April 26, 
and he is weighing in with Kibaki and Odinga to urge them to work 
this out, and calling Marende to express support for this likely 
ruling.  Marende asked me to request Annan to urge Kibaki and Odinga 
to respect whatever ruling Marende makes, and I am doing so.  We will 
be poised, along with other members of the international community, 
to express support for the Speaker's likely ruling.  Growing domestic 
pressure on Kibaki and Odinga to sort out their differences, coupled 
with encouragement from Annan, us, and others, will probably keep the 
coalition together.  That said, the two sides have demonstrated a 
propensity to miscalculate, so the possibility of a walkout from 
Parliament by either side cannot be ruled out.  It is also possible 
that, if the two sides do not pull back, the crisis could slide 
toward the holding of new elections or a unilateral (but still 
constitutionally legitimate) government involving only Kibaki, his 
Party of National Unity, and Vice President Musyoka (who has a party 
with only 14 Members of Parliament). Neither are viable options for 
stable democratic government, so we must continue to keep the 
coalition together while pressing for implementation of the reform 
agenda. End summary. 
 
¶2. (C) Ref A reported on the troubled state of the coalition 
government and prospects for the reform process.  Pressure on 
President Kibaki and Prime Minister Odinga from the U.S., Kofi Annan, 
and others in the international community coupled with growing 
domestic Kenyan pressure influenced the two leaders to try and sort 
out the coalition government issues.  The Secretary's letter and the 
earlier comments on Kenya by the President were crucial in 
influencing the coalition partners (ref B).  Kibaki, Odinga, and 
their teams met in mid-April to work out a way forward.  That meeting 
seemed to lay the basis for a more effective working relationship 
between the coalition partners.  Kibaki and Odinga issued a joint 
statement emphasizing the need for unity in the coalition government 
and said all contentious issues were discussed.  They indicated that 
the terms and modalities of a recently formed coalition management 
committee were agreed to. The statement further indicated that Kibaki 
and Odinga had instructed their teams to prepare for their 
consideration a draft document dealing with the contentious issues 
(everything from consultation regarding executive appointments, to 
the full range of the reform agenda). It was also agreed that each 
ministry would be tasked with providing a status report on their 
efforts to implement the reform agenda.  Documents prepared for and 
as a result of the meeting which we obtained indicate that there was 
a frank discussion, including on the need to counter the "culture of 
impunity," and regarding the two sides' differing interpretations of 
the national accord which constituted the coalition government. 
 
¶3. (C) Barely a week after this constructive meeting, the opening of 
Parliament on April 21 triggered a profound crisis which threatens to 
tear the coalition apart.  The issues which triggered the crisis are 
who will become leader of government business in the Parliament, and 
who will chair the House Business Committee (HBC) which sets 
Parliament's agenda.  Vice President Musyoka sent a letter to Speaker 
of Parliament Marende designating himself as leader of government 
business.  While there is no legal requirement that both positions be 
held by the same person, the vice president has traditionally served 
as both chair of the HBC and leader of government business, although 
at one point ex-President Moi rotated it among government ministers. 
Odinga sent a counter letter to Marende designating himself as leader 
 
NAIROBI 00000823  002 OF 003 
 
 
of government business.  However, Musyoka's attempt to submit a slate 
of MPs for the House Business Committee without consultation, and 
which named him as Chair, further inflamed the situation.  The HBC 
sets the Parliament's agenda and thus is an extremely important 
position.  Odinga objected to this as an attempt by Musyoka to demean 
Odinga's position as equal partner in the Grand Coalition government. 
On April 23 there was a furious debate in Parliament over the 
question.  Marende then adjourned Parliament until April 28, and said 
he would make a ruling on that day regarding the issue of how to 
constitute the HBC. (Note: Until the HBC is constituted, Parliament 
cannot conduct business.  Thus important issues, such as discussion 
of a supplementary budget and forming the Independent Interim 
Electoral Commission can not move forward.  End Note.) 
 
¶4.  (C) Since then there has been a flurry of private meetings and 
public statements, all of which make clear that both sides are dug 
into their positions.  This has created a sense of crisis, since the 
fate of the coalition government itself is potentially at stake. 
Following meetings with his team on April 25, Kibaki sent a letter to 
Marende stating that it is his decision, per the constitution, to 
designate the leader of government business, that his decision is 
final, and that he will not engage in further consultations regarding 
the issue. On April 26 Odinga held a large rally in Kibera, a Nairobi 
slum which is a key base of his support, and stated that he will not 
back down.  He stated that he will leave the coalition government and 
insist on new elections if the issue is not resolved in his favor. 
Leaders of Kibaki's side also publicly stated that they would not 
back down. 
 
¶5.  (C) Just as both sides are responsible for the troubled state of 
the coalition, both are responsible for setting up the current 
crisis.  Kibaki and Musyoka did not consult Odinga and his side 
before they sent the letter designating Musyoka.  Although the vice 
president has often been the leader of government business, nothing 
in the constitution or law states that he must be, and Musyoka was 
not a party to the national accord which established the coalition. 
He has played the role of spoiler, as we have previously reported. 
This serves the purposes of those on the President's side who seek to 
frustrate Odinga and limit his authority as Prime Minister. 
Although, as we have reported, Odinga has not played his hand 
particularly well within the coalition government, he has legitimate 
grievances that his authority as Prime Minister has not been 
respected and that the coalition is not functioning based on 
consultation and power-sharing. Given this mounting frustration, 
Odinga has decided to make a decisive stand over the issue of who 
will become the leader of govrnment business.  As he is Kibaki's 
coalition partner (and Musyoka was not part of the agreement), and he 
has the mandate "to coordinate" government business in the newly 
created position of prime minister, he has a strong argument that he 
should be leader of government business in Parliament.  Even though 
the mid-April meeting between Kibaki, Odinga, and their teams opened 
the way potentially to sort out the coalition government issues, 
Odinga feels that the issue of who will become leader of government 
business is so important that he cannot afford to ignore it. 
Moreover, in his view he has chosen a battleground which plays to his 
advantage:  he has a parliamentary majority, the Speaker was elected 
by Odinga's party and so he is unlikely to rule against him, and by 
staking out this issue Odinga unifies his Orange Democratic Movement 
(ODM), which was increasingly fractured.  Similarly, Kibaki's side 
believes they have the decisive advantage of holding the legal and 
constitutional high ground, given Kibaki's position as head of 
government. 
 
¶6. (C) Apart from the political issues, there are a number of 
technical and legal issues involved.  The National Accord, which 
Kibaki and Odinga signed, gives Odinga as Prime Minister 
responsibility to "coordinate and supervise the functions of 
government."  Article 23 of the constitution states that "the 
executive authority of the Government of Kenya shall vest in the 
President and, subject to this Constitution (which now incorporates 
the position of Prime Minister), may be exercised by him either 
directly or through officers subordinate to him." Attorney General 
Wako, who is an ex-officio Member of Parliament and pro-Kibaki, may 
provide a legal interpretation that Kibaki as head of government is 
the only person authorized to name the leader of government business. 
The Speaker, however, is not required to make his ruling based on the 
Attorney General's opinion. 
 
¶7. (C) Marende is on the hot seat.  Since last year he has shown 
himself to be a man of principle who has run Parliament in an 
objective, non-partisan manner.  Kibaki, Musyoka, and Odinga have set 
up the crisis as a winner-take-all outcome, so there is little room 
for compromise.  Some are trying to persuade Musyoka to withdraw his 
name as leader of government business in order to end the crisis, but 
that seems unlikely.  Some in the ODM see Odinga's move as designed 
 
NAIROBI 00000823  003 OF 003 
 
 
to force compromise on other issues; i.e. he backs off this issue in 
return for Kibaki agreeing that Odinga can name a new commissioner of 
police, or new judicial hierarchy, but this seems unlikely.  Odinga 
is taking a strong stand due both to the symbolic and actual 
importance of the position of leader of government business. 
 
¶8. (C) I met with Speaker Marende April 27 to discuss the way 
forward.  Marende said that, when the crisis developed at the end of 
last week, he sought meetings with Kibaki and Odinga to try to work 
out a compromise.  Marende said that he would only meet with them 
together.  Odinga was willing to attend a tripartite meeting and 
negotiate, but Kibaki refused.  Marende said that, while he has not 
made a final decision regarding his ruling to be given on April 28, 
he will be guided by several considerations.  First, the coalition 
government must speak with one voice; he will indicate that it has 
not done so.  Second, his paramount consideration is to keep 
Parliament functioning given the urgent need to implement the reform 
agenda (as the Speaker declared in his opening address to Parliament, 
per septel).  Third, he will strike a balance between the two sides 
in an effort to give them more time to work out a compromise. 
Marende pointed out that he can constitute the business committee 
while side-stepping the question of who is leader of government 
business, since the head of the committee need not be the leader of 
government business.  It can be left to Parliament to choose the 
leader of the business committee (roughly equivalent to the House 
Rules Committee in the U.S. Congress).  The Parliament could, he 
indicated, choose to elect him, because both sides respect him as 
impartial in running the Parliament and, per the Parliament's 
standing orders, he is ex-officio head of all committees anyway.  I 
told Marende that this approach sounds reasonable.  I said that we 
would support him publicly if he rules along these lines, coordinate 
with key diplomatic colleagues to do the same, and publicly and 
privately urge both sides to respect it (and avoid a walkout by 
either side). 
 
¶9. (C) I spoke with Kofi Annan on April 26 to review the state of 
play.  Annan blamed both sides for provoking the crisis, although he 
commented that "ODM is not wrong to think that in some cases they 
have been short-changed with respect to the spirit and letter of the 
accord."  Annan said that he would try to talk with Kibaki and 
Odinga, and I urged him to call Marende to help fortify the Speaker 
to make a courageous and difficult ruling along the lines laid out 
above.  When I met Marende April 27, he asked me to request Annan to 
call Kibaki and Odinga to urge them, in general terms, to support and 
be prepared to cooperate with whatever ruling the Speaker makes, 
given that both sides know that he (the Speaker) has the interests of 
the nation at heart.  I have conveyed this message to Annan.  The 
most constructive approach we can adopt at this point is to support 
the Speaker's likely ruling, coordinate closely with Annan and the 
international community to express support for it, and weigh in with 
both sides to accept it.  That approach will buy time and space for 
the two sides to negotiate further regarding the leader of government 
business.  There is strong pressure coming from the Kenyan people for 
Kibaki and Odinga to work out their differences, and we will 
encourage and urge them to do so. 
 
¶10.  (C) Given that both sides have repeatedly demonstrated a 
propensity to miscalculate, a walkout from Parliament by either side 
cannot be ruled out.  A walkout would paralyze business and heighten 
a sense of crisis.  That would undoubtedly increase calls for a new 
election, which is not a viable option at this time given the lack of 
electoral machinery and the continuing high ethnic tensions. 
Ultimately, the parliamentarians do not want to risk their newly 
gained seats and suffer the expense of a new election.  A new 
election thus seems unlikely, but again nothing should be ruled out