This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 NAIROBI 000462 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PHSA MOPS EAID ASEC PTER PREL SO KE
SUBJECT: KENYA CONFIRMS INTENT TO PROSECUTE U.S.-CAPTURED 
PIRATES; SEEKS EVIDENCE AND TESTIMONY 
 
 
¶1. (SBU)  SUMMARY:  Kenyan authorities confirm their intent 
to proceed to prosecute and bring to trial in coming days the 
10 Somali pirates captured January 22 by U.S. forces.  They 
seek immediate transfer to Kenyan authorities any/all items 
of evidentiary value still in U.S. hands.  The nation's chief 
prosecutor also enquires as to possible U.S. testimony of the 
capture in international waters so as to persuade Kenya 
magistrate that Kenya indeed has legal jurisdiction to 
prosecute.  ACTION REQUEST: See Para 5.  END SUMMARY. 
 
¶2. (SBU) KENYA SAYS "YES": Keriako Tobiko, Director of 
Kenya's Department of Public Prosecutions, confirmed to 
PolCouns afternoon of February 1 that Kenya indeed intends to 
proceed with prosecuting the 10 Somali pirates captured by 
the U.S. Navy in international waters (reftel).  Tobiko, who 
had just departed from a Foreign Ministry-led 
inter-ministerial meeting on the subject, stated that the 
Embassy would soon be receiving a formal diplomatic note to 
that effect.  He also noted that given the complexities of 
the case and the high stakes involved in ensuring Kenya 
obtains a conviction, the decision was made for the 
prosecution to be handle by trained DPP prosecutors vice 
police prosecutors (who are currently in charge of the 
investigation phase). Tobiko has just summoned to Nairobi the 
lead police and DPP prosecutors from Mombasa to review the 
case with him the morning of Febrary 2. 
 
¶3. (SBU) "FULL STEAM AHEAD:" Tobiko stated that the current 
plan is to have the ten pirates arraigned in court as soon as 
Friday, February 3.  He is seeking a trial to begin as soon 
as Monday, February 6, and predicted that it might last a 
week or so. (NOTE: It appears the Indian dhow and crew will 
be held at least until February 3, possibly throughot the 
trial.  END NOTE.)  Tobiko noted that Kenya is taking the 
case and its international obligations "very seriously." 
Asked about possible Indian prosecution, he stated that the 
Indian High Commission has been involved, and that out of 
respect and comity, the Government of India would also be 
formally advised of Kenya's intent to proceed with 
prosecution. (He has not heard whether India seeks to 
prosecute or not.) 
 
¶4. (SBU) WITH A REQUEST FOR HELP:  Tobiko requested, as have 
Kenyan police prosecutors previously, that all evidence, 
reports and statements by naval officers, as well as anything 
else of evidentiary value in NCIS possession be forwarded to 
Kenyan authorities as soon as possible. (NOTE:  The FBI 
continues to provide support for Kenyan prosecution efforts 
and remain in Mombasa currently to support that effort. END 
NOTE.)  Tobiko also noted that Kenyan jurisdiction only 
attaches if the pirates were in Kenyan territorial waters 
(not the case) or on the high seas (as was the case) when 
captured.  Written statements to that effect, he noted, were 
only of minimal use in Kenyan courts, however.  He feared 
that a good defense lawyer could have the case thrown out if 
there were not a U.S. witness to the actual capture available 
to testify to the exact location of the vessel when captured. 
 He thus enquired as to the availabilty of a U.S. witness to 
testify in court, perhaps even for just one day, in court the 
week of February 6. 
 
¶5. (SBU) COMMENT AND ACTION REQUEST:  The speed and intensity 
of Kenyan engagement on this case remains nothing short of 
extraordinary.  (Especially as it occurs simultaneous to a 
major corruption scandal that saw the resignation of the 
Finance Minister just today.)  Post seeks confirmation as to 
the transfer of any/all evidence yet to be turned over to 
Kenyan authorities.  Post also requests guidance as to 
possible availability of at least one witness from the USS 
Winston Churchill (or elsehwere) who can testify that the 
pirated dhow was indeed in international waters when 
intercepted by the U.S. Navy.  Please advise ASAP.  END 
COMMENT AND ACTION REQUEST. 
BELLAMY