VZCZCXRO5813
PP RUEHROV
DE RUEHNR #1245/01 1731411
ZNR UUUUU ZZH
P 221411Z JUN 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 9928
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6593
RUEHLO/AMEMBASSY LONDON 3234
RUEHFR/AMEMBASSY PARIS 3104
RUZEFAA/HQ USAFRICOM STUTTGART GE
RHMFIUU/CJTF HOA
RUZEFAA/CDR USAFRICOM STUTTGART GE

UNCLAS SECTION 01 OF 02 NAIROBI 001245 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: EWWT MARR PGOV PHSA PHUM PREL KE
SUBJECT: KENYAN RESPONSE TO DEMARCHE ON PIRACY 
 
REF: A. STATE 59021 
     ¶B. STATE 58579 
 
¶1. (U) This is an action message; request at para 4. 
 
¶2. (U) The Deputy Chief of Mission delivered ref A and B 
talking points and nonpapers to Beatrice Karago, Principal 
State Counsel for the Ministry of Foreign Affairs and the 
Government's primary point of contact on piracy issues, on 
June 19. 
 
¶3. (U) Karago thanked the DCM for ongoing U.S. support to the 
Director of Public Prosecutions and said that she 
particularly appreciated U.S. efforts to pressure other 
countries with a stake in combating piracy to shoulder more 
of the burden.  Karago said that when it comes to piracy, 
countries with a national interest at stake should take 
action and not leave it to a third party.  Kenya is a 
developing country that has its own backlog of legal cases 
and overcrowded, sub-standard prisons.  Kenya is now using 
its own scarce resources to prosecute piracy suspects who are 
rightly the responsibility of other countries, she said.  To 
make matters worse, the assistance that Kenya is currently 
receiving from the European Union to support the added burden 
(through the UN Office on Drugs and Crime) has not been very 
useful to date.  Every time the Kenyans bring up their need 
for capital expenditures to build their institutional 
capacity, the EU and UN counter with offers to supply 
consultants, which the Kenyans do not need, she said. 
 
¶4. (U) Karago acknowledged the already considerable technical 
and material assistance being provided by the United States 
to build the capacity of the Director of Public Prosecutions 
and the police.  That said, she stressed that Kenya's most 
critical need is improvement in their prison facilities. 
Built for a capacity of 16,000 prisoners, Kenya's prisons now 
hold 52,000, she said.  DCM took the request and promised to 
relay it to Washington for consideration. 
 
¶5. (U) Karago agreed that an international piracy court is 
not an answer to the piracy problem (ref B).  First of all, 
it would not be needed if stakeholder countries would step up 
to their responsibilities.  More practically, many believe 
that the case throughput would not be sufficient to justify 
the high cost of creating such a court, she said.  Karago 
said there were a couple of options that were viable given 
the current situation (i.e., stakeholder countries are not 
stepping up and Kenya is unfairly shouldering the burden). 
First, it would be easier to develop a strategy to increase 
stakeholder participation if there was open and frank 
discussion about the reasons countries do not want to accept 
piracy suspects.  Are there legislative limitations that 
could be addressed, for example?  Resource limitations? 
Karago suggested that some countries may be willing to accept 
convicted prisoners to serve out their sentences in their 
own, vice Kenyan, prisons.  Other common law countries could 
benefit by training from Kenyan lawyers to support their own 
prosecutions, she said.  Still others would need to change 
their legislation to be able to prosecute pirates, a lengthy 
process, Karago admitted. 
 
¶6. (U) The second option Karago discussed would be a formal 
recognition of the burden that Kenya is taking on behalf of 
the international community and a conscious decision to 
create a hybrid court, like the Special Court for Sierra 
Leone.  (Note: The hybrid system would be similar in that the 
international community would invest in sorely-needed 
infrastructure improvement in Kenya to specifically deal with 
the piracy problem.  Like in Sierra Leone, the infrastructure 
ultimately would be turned over to the Government of Kenya. 
End Note.) Karago said that such an approach would be win-win 
for the international community and Kenya. 
 
¶7. (U) When asked whether any other countries were pursuing 
Memoranda of Understanding with Kenya for accepting pirates, 
Karago said that Kenya is negotiating with the governments of 
Canada, Denmark, and Turkey.  (Note: Because Denmark opted 
out of the European Union Defense Council, Denmark is not 
covered under the existing Memorandum with the European 
Union, she said.  End Note.)  Karago added that she recently 
spoke with a NATO representative who asked about Kenya's 
potential reaction to a similar request from NATO, but Kurago 
said that such a request would have to be clarified because 
of the obvious potential for overlap with separate agreements 
with NATO member states. 
 
NAIROBI 00001245  002 OF 002 
 
 
 
¶8. (SBU) Comment: Karago hinted at but did not articulate a 
third option, which we will flesh out here because it could 
add teeth to our efforts to increase stakeholder 
participation: the primary stakeholders in this issue are not 
necessarily the countries who flag, own, or crew the merchant 
ships -- they are the shipping companies themselves.  If 
these stakeholders refuse to re-assess their obligations to 
combat piracy -- either by re-routing ships, increasing 
security measures, or, in the case of insurance companies, 
re-assessing claim payment policies in cases of ransoms paid, 
it is up to us and our coalition partners engaged in 
anti-piracy patrols to re-assess our presence and our 
parameters for interdiction.  The current glut of piracy 
cases -- which is increasingly trying the patience of the 
Kenyans and tying up valuable U.S. and Kenyan resources -- is 
to some degree self-generated and, from our perspective, has 
had no noticeable deterrent effect on the larger problem to 
date.  If our efforts to increase stakeholder participation 
or provide more infrastructure support to Kenya's inadequate 
penal system are not successful, Kenya's continued 
cooperation is not guaranteed.  End Comment. 
RANNEBERGER