VZCZCXRO3482
PP RUEHROV
DE RUEHNR #2016/01 2671429
ZNR UUUUU ZZH
P 241429Z SEP 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 1081
INFO RUCNIAD/IGAD COLLECTIVE
RHMFIUU/CJTF HOA
RUZEFAA/CDR USAFRICOM STUTTGART GE
RUZEFAA/HQ USAFRICOM STUTTGART GE
RUEAWJA/DEPT OF JUSTICE WASHDC

UNCLAS SECTION 01 OF 02 NAIROBI 002016 
 
SENSITIVE 
 
DEPT FOR AF/E Driano, AND S/CT 
AF/RSA FOR BITTRICK AND BANDO 
INL FOR SILENSKY 
DOJ/OPDAT FOR ALEXANDRE, BERMAN, SILVERWOOD 
DOJ FOR CRIM, DAAG, SWARTZ 
 
SIPDIS 
 
E.O.12958: N/A 
TAGS: KCRM KJUS PHSA KCOR PGOV KE IT
 
SUBJECT: KENYA THREATENS END TO PIRACY PROSECUTIONS 
 
¶1.  (SBU) Summary: On September 12, the Kenya Attorney General (AG), 
Amos Wako, presented opening remarks at the Kenya prosecutors' 
convention in Mombasa, and touted the Department of Public 
Prosecutions' (DPP) progress under his leadership.  He listed a 
dozen specialized units that had been formed within the DPP and 
relevant criminal justice legislation that had been enacted or had 
been recently drafted.  When noting a number of these 
accomplishments, he acknowledged the support that was provided by 
the U.S. government.  Also, he stated that the DPP was now the 
"leading [piracy] prosecution agency in the world," but that Kenya's 
willingness to prosecute these cases is being "taken for granted." 
He stated that the international community needs to provide Kenya 
with more assistance, "otherwise, we will say 'enough is enough.'" 
 
¶2.  (U) The AG's remarks were later echoed by the Director of Public 
Prosecutions (DPP), Keriako Tobiko, in private conversations.  The 
DPP expressed annoyance at the international community's 
unwillingness to prosecute Somali pirates in their own countries, 
and at the proposals to develop counter-piracy centers in regional 
states other than Kenya.  He also said that proposals for an 
international piracy tribunal, however formulated, were "fantasies." 
 The AG also announced a three-year plan to phase out police 
prosecutors.  There are over 300 police prosecutors and they now 
prosecute over 90 percent of criminal cases.  There are 73 trained 
lawyers in the DPP's office.  The plan would require current police 
prosecutors to undergo training and approval by the AG to become lay 
prosecutors who would work under the direct supervision of the DPP. 
Over time, increased employment of attorneys within the DPP would 
lead to a reduction in the number of lay prosecutors.  End summary. 
 
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AG TOUTS PROGRESS AND CRITICIZES DONORS 
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¶3.  (SBU) On the opening day of the Department of Public 
Prosecutions' (DPP) First Annual Convention, Attorney General Amos 
Wako spoke for three hours extolling the progress of the DPP, while 
criticizing the international community for constantly "talking 
about law reform, law reform," and for not giving enough credit and 
support for Kenya's piracy prosecution efforts.  The AG noted that, 
in the last few years, the DPP had established approximately a dozen 
substantive units, including, anticorruption, economic crimes and 
asset forfeiture; narcotics and money laundering; general crimes; 
extradition and mutual legal assistance; constitutional and judicial 
review; sexual offenses and victims' rights; and counter-piracy. 
(Comment:  Most of these units exist in name only.  Senior 
prosecutors are assigned to multiple units, but they do not 
necessarily undertake substantive work in those areas.  A dozen 
prosecutors have been "assigned" to the counter-piracy unit, for 
example.  Until recently, only three prosecutors have been actively 
involved in any of the piracy cases. End Comment) 
 
¶4.  (SBU) The AG also heralded his Department's involvement in the 
drafting and enactment of legislation relating to sexual offenses, 
plea bargaining, and witness protection, as well as their current 
role writing proposed legislation on anti-money laundering, mutual 
legal assistance, counterterrorism, organized crime, and the 
international transfer of prisoners.  He listed ten training 
conferences that had taken place over the last year, including those 
relating to trial advocacy, witness protection, forensics, sexual 
offenses, and the induction of new prosecutors.  He thanked the U.S. 
government for its assistance with the legislative drafting and 
training programs. 
 
¶5.  (SBU) The AG announced plans for the police prosecutors to be 
phased out and replaced over time with lawyers employed in the DPP. 
The plan calls for the AG to establish two categories of criminal 
offenses:  minor offenses (misdemeanors) that could be charged by 
police, but the charges would have to be reviewed and approved by 
the DPP's office within 14 days; and major offenses (felonies) that 
could only be brought by the DPP's office.  Existing police 
prosecutors would have to undergo additional training, be vetted and 
officially gazetted by the AG before they would join the ranks of 
"lay prosecutors" overseen by the DPP.  Meanwhile, more lawyers 
would be hired by the DPP. 
 
¶6.  (SBU) In his public remarks, the Director of Public 
Prosecutions, Keriako Tobiko, also thanked the US Department of 
Justice and the U.N. Office on Drugs and Crime (UNODC) for their 
continued support.  He asked the USDOJ Resident Legal Advisor (RLA) 
 
NAIROBI 00002016  002 OF 002 
 
 
to help his office develop several training programs, including 
country-wide seminars for prosecutors and judges on plea agreements, 
and a program to address sentencing reform.  (Note: The RLA's office 
provided support for the DPP's three-day conference, and the RLA and 
the USDOJ/International Criminal Investigative Training Assistance 
Programme (ICITAP) Senior Law Enforcement Advisor were present to 
teach portions of the program. There were approximately 100 
participants, including representatives from the police prosecutors, 
the Kenya Anti-Corruption Commission (KACC), and the Kenya Revenue 
Authority (KRA).  The KRA was recently granted prosecutorial powers 
by the AG.  The AG has never extended these same powers to the KACC. 
 End Note) 
 
¶7.  (SBU) In private, the DPP expressed his office's irritation with 
the pace and amount of support provided by UNODC for piracy 
prosecutions.  He noted that those European countries who had 
delivered pirate suspects to Kenya were unwilling to prosecute 
pirates in their home countries.  He raised the case of the Italian 
capture where the suspected pirates were held by the Italian Navy on 
board ship for several weeks, and were arraigned via teleconference 
before an Italian judge, only later to be flown to Kenya after Italy 
passed legislation to discharge itself of the responsibility to 
prosecute this group of suspects.  He was also dismayed about plans 
by the international community to pay for "counter-piracy centers" 
in neighboring states that have done much less than Kenya in the 
fight against piracy.  (Note: The president of the International 
Maritime Organization (IMO) is Japanese, and the Japanese reportedly 
have agreed to contribute several million dollars toward the IMO 
establishing such a center in Djibouti, and possibly Yemen. End 
Note) 
 
¶8.  (SBU) DPP Tobiko stated that an international criminal tribunal 
for piracy was not workable or realistic.  He said that such a 
tribunal, wherever based or however constituted, was a "fantasy." 
He referred to the checkered history of the other international 
criminal tribunals.  He concurred with the view that donor money was 
better spent building the capacity of existing criminal justice 
systems.  He also stated that Tanzania was unlikely to pass 
legislation to permit piracy prosecutions to proceed there, because 
Tanzania did not see that Kenya was receiving any significant 
benefit for its involvement.  (Note: Although the DPP was dismissive 
of the work done by UNODC over the last few months for the judiciary 
and prisons on the Kenyan coast, representatives from those 
organizations are more complimentary of UNODC's assistance.  End 
Note) 
 
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Comment 
------- 
 
¶9.  (SBU) Although both the AG and the DPP publicly expressed 
appreciation for U.S. support, there was a new stiffness in their 
private posture toward the RLA and Embassy representatives.  In 
part, their new posture can be attributed to their disenchantment 
with the international community's general response to piracy and to 
their perception that they are not getting a sufficient and liquid 
share of the millions of dollars being spent by the international 
community on counter-piracy efforts.  However, their new attitude 
likely is influenced more by our recent calls for the AG to be 
removed from office. 
 
¶10. (SBU) The international community's desire for Kenya to continue 
to assume the primary role in piracy prosecutions comes at an 
awkward time.  Now, twenty months after the post-election violence, 
the Kenya government's continued inertia, particularly its lack of 
significant progress in improving the rule of law, has underscored 
the need for certain GOK officials to be replaced.  It is equally 
apparent that their removal is unlikely to occur without the 
application of international pressure.  The long-term interests of 
the Kenyan people likely would be served if the AG, who has held 
that that position for more than 18 years, were replaced.  Piracy 
prosecution in the region might suffer in the short-term, however, 
if the AG uses his discretion and refuses to accept more piracy 
cases in order to punish the international community for its calls 
for his removal.  End Comment 
 
 
RANNEBERGER