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DE RUEHNR #3830/01 2700429
ZNR UUUUU ZZH
R 270429Z SEP 07
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC 2539
INFO RUEHXR/RWANDA COLLECTIVE
RUEATRS/DEPT OF TREASURY WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC

UNCLAS NAIROBI 003830 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR AF/E 
TREASURY FOR VIRGINIA BRANDON 
 
SIPDIS 
 
E.O. 12958:  N/A 
TAGS: ECON KCOR PGOV KE
SUBJECT: KENYA: PARLIAMENT MOVES TO PREVENT INVESTIGATION OF 
PRE-2003 CORRUPTION CASES 
 
 
¶1. (SBU) Summary: Kenya's Parliament has passed a bill containing an 
amendment to the country's primary anti-corruption law that would 
effectively bar the Kenya Anti-Corruption Commission from 
investigating corruption cases prior to May 2003.  This brazen 
attempt to secure immunity for some of the country's biggest past 
looters appears to be have been orchestrated and paid for by at 
least two different networks of corrupt individuals, including those 
in league with ex-President Moi and his family.  The very passage of 
the bill casts Kenya in a negative light, but it's likely that 
President Kibaki, partly in response to a chorus of local and 
international protest, will send the bill back to Parliament for 
deletion of the offending clause.  We have weighed in strongly with 
Kibaki to urge that he not sign the bill.  End Summary. 
 
--------------------------------------------- -- 
MPs Roll Back KACC's Power to Investigate Graft 
--------------------------------------------- -- 
 
¶2. (U) On September 12 on a vote of 38 to 27 (out of a total of 222 
voting MPs), the Kenyan Parliament passed the Miscellaneous Statute 
Amendment Bill, an omnibus bill containing a grab-bag of amendments 
to existing Kenyan legal code.  Included in the bill is a clause 
that prohibits the Kenya Anti-Corruption Commission (KACC) from 
investigating any corruption cases prior to passage in May 2003 of 
the bill that created the KACC, the Anti-Corruption and Economic 
Crimes Act. 
 
¶3.  (SBU) Insertion of the clause and passage of the bill marked a 
sharp turnaround from the Government of Kenya's original intent. 
The GOK, through the Ministry of Justice and Constitutional Affairs 
and the Attorney General's Office, had originally proposed several 
amendments to the Anti-Corruption and Economic Crimes Act and other 
laws that would have sped up prosecution of corruption cases, 
conferred greater investigative powers to the KACC, and made it 
easier to verify wealth declarations filed by public officers. Not 
only did Parliament's Justice and Legal Affairs Committee, led by MP 
Paul Muite, reject these changes.  It also inserted the clause 
significantly weakening KACC's powers. Speaking to the Ambassador 
and Econ/C on September 25, KACC Director Aaron Ringera confirmed 
that the clause, if it becomes law, would have a devastating impact 
on KACC's ability to investigate under any Kenyan law any corrupt 
activities dating prior to May 2003. 
 
¶4.  (U) Passage of the bill sparked a brief uproar in the media, 
with civil society, the private sector, donors, and everyday Kenyans 
expressing outrage at a measure that will effectively bar 
investigation of the country's most infamous grand-scale corruption 
cases, including the Goldenburg scandal of the mid-1990s and the 
more recent series of security-related procurement scams 
collectively referred to as the Anglo-Leasing scandals.  Like-minded 
donors, including the U.S. Mission, signed on to both a public 
statement condemning passage of the clause and to a letter to 
President Kibaki containing similar language and urging him not to 
provide assent to the law.  Text of the donor letter to Kibaki 
follows below in para 12. 
 
------------------------------ 
Kroll Report Adds Fuel to Fire 
------------------------------ 
 
¶5.  (U) Passage of the clause also came only two weeks after the 
public release, via an unknown source, of the Kroll Report, a 
forensic investigation commissioned in 2004 by the Kibaki 
administration to trace the ill-gotten gains of former President 
Moi, his family, and closest advisors. The report estimates that as 
much as $2 billion was looted and laundered overseas, putting Kenya 
under Moi on par with recent history's greatest kleptocrats. 
 
¶6.  (U) Unbowed by criticism of the clause, Justice and Legal 
Affairs Committee Paul Muite went on the counterattack, justifying 
the offending clause with a circuitous legal argument about the 
underlying constitutionality of the KACC and the need to completely 
overhaul the Anti-Corruption and Economic Crimes Act under a future 
new constitution.  He also sharply criticized the KACC and its 
Director, Aaron Ringera, as being ineffective and compromised in 
leading the war against corruption.  On this latter point, he struck 
a chord with some Kenyans, who are critical of Ringera and the KACC 
for not being aggressive enough in tackling grand-scale corruption 
cases. 
 
-------------------------------------- 
Ringera: Stressed Out But Still Trying 
-------------------------------------- 
 
¶7.  (SBU) In meeting with the Ambassador on September 25, Ringera 
 
showed the strain caused by the relentless public criticism of the 
KACC and of himself personally.  He reiterated that investigating 
grand scale corruption is a long-term, painstaking process not 
amenable to easy or quick results.  On the Anglo-Leasing cases, he 
said the KACC had sent five files for prosecution to the Attorney 
General's Office, only to have them returned with a request that the 
international elements of the cases be completed first.  This, 
Ringera explained, will further delay prosecution.  In the UK, he 
said, the Serious Fraud Office in London had only recently agreed to 
undertake investigations into the Anglo-Leasing cases that have UK 
links.  Ringera also complained about the Kenyan legal system 
itself, with its numerous loopholes that effectively preclude 
prosecution of high-level corruption cases.  On the Kroll Report and 
on why no action was being taken to investigate the family of former 
president Moi, Ringera said simply, "that's political."  No one in 
the Kenyan political elite, even in the opposition, seriously wants 
to pursue the Mois, he said.  (Note: Ringera has candidly admitted 
in previous private meetings that investigations of ex-President 
Mois or of President Kibaki are off-limits because they could 
de-stabilize the country politically.  End note). 
 
--------------------------- 
Corruption Networks at Work 
--------------------------- 
 
¶8.  (SBU) Muite's legal arguments aside, it is clear to most 
observers that he and other members of the Justice and Legal Affairs 
Committee conspired to weaken KACC in a bald-face attempt to protect 
different networks of corrupt former (and current) GOK officials. 
Muite himself is the attorney for Chris Murungaru, a sitting MP who 
was a prominent member of Kibaki's inner circle after 2002, but who 
was dropped from the Cabinet in November 2005 due to credible 
revelations placing him at the center of the Anglo-Leasing scams 
(Note: Murungaru has also lost U.S. visa privileges under 
Presidential Proclamation 7750 for his involvement in Anglo-Leasing. 
 End note).  Supporting Muite was MP Njoki Ndungu, famous for her 
activism on women's issues, but also quietly infamous as Murungaru's 
girlfriend.  Murungaru, said Ringera, almost certainly paid a number 
of voting MPs to support the amendment, and was himself its loudest 
backer on the floor. 
 
¶9.  (SBU) Reportedly seeking to protect the Moi family from further 
investigation was Amina Abdullah, a nominated MP on the Justice 
Committee who reportedly owes her position to the Mois.  She is a 
cousin of the wife of Gideon Moi, one of the ex-President's two sons 
and the beneficiary of perhaps $500 million in ill-gotten gains 
stashed overseas, according to the findings of the Kroll Report. 
 
------------------------------- 
Comment: Will He Assent or Not? 
------------------------------- 
 
¶10.  (SBU) The clause barring KACC from investigating crimes 
committed before 2003 is nothing short of outrageous, as it would 
provide effective immunity from investigation and prosecution to all 
those who have robbed Kenya of billions of dollars over the past 
decade, significantly undermining the country's development.  Its 
very passage is a black eye to Kenya's international reputation, and 
it sends a very negative signal to the private sector, including 
foreign investors, and to donors about the country's collective will 
to deal with corruption and improve governance.  Further, in light 
of this episode, we have no hope that Parliament will pass 
longstanding draft anti-money laundering legislation before it 
adjourns in the coming two weeks. 
 
¶11.  (SBU) Fortunately, the bill requires presidential assent to 
become law.  It is the hope of many in Kenya that the bill is so 
egregious and transparent in its attempt to protect the corrupt that 
it will provide President Kibaki with a perfect opportunity (and in 
the middle of a competitive election campaign, no less) to do the 
right thing - send it back to Parliament for deletion of the 
offending clause.  When KACC's Ringera attempted to meet with Kibaki 
recently to urge him to do so, he was told the meeting was 
unnecessary because the problem would be dealt with.  This is a good 
signal, and we're betting Kibaki will send the bill back to 
Parliament shortly. 
 
--------------------------------------------- -------- 
Text of September 18 Donor Letter to President Kibaki 
--------------------------------------------- -------- 
 
¶12.  (U) Begin text: 
 
The Honourable Mwai Kibaki 
President 
 
Republic of Kenya 
Nairobi 
 
Mr. President: 
 
We have been following the debate in Parliament hast week on a 
clause in the Miscellaneous Statue Amendment Bill that will 
effectively prevent the Kenya Anti-Corruption Commission (KACC) from 
investigating corruption that occurred before 2003 and a clause 
which would have allowed for the public disclosure of wealth 
declarations by government officials. 
 
The decision by Parliament sends a wrong signal to Kenyans and the 
democratic partners on good governance and diminishes the 
credibility of Kenya in its fight against corruption and impunity. 
It is obvious that the proposed revision undermines the 
effectiveness of the Anti-Corruption and Economic Crimes Act and the 
work of the KACC.  Also, we would like to draw your attention to the 
fact that several countries have been requested by the Kenyan 
Government to assist the Government in its fight of past corruption 
cases.  This international cooperation is now being clearly 
jeopardized and will impact negatively on important efforts to 
recover lost assets. 
 
We therefore urge you not to provide assent to the bill that will 
truly undermine the effectiveness of the Anti-Corruption and 
Economic Crimes Act, 2003.  This letter is being endorsed by 
following democratic partners of Kenya:  Canada, Norway, Portugal 
(Presidency of the European Union and on behalf of all EU members 
States represented in Nairobi), Switzerland and United States of 
America and signed on their behalf. 
 
End text. 
Ranneberger