TERRORISM TRIALS: GOK - "WE AGONIZE, BUT ARE

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 002424

SIPDIS

E.O. 12958: DECL: 06/10/2030
TAGS: PTER PGOV KISL KDEM PINS ASEC
SUBJECT: TERRORISM TRIALS: GOK - "WE AGONIZE, BUT ARE
LIMITED IN OUR PUBLIC RESPONSE"

REF: A) NAIROBI 2409

Classified By: Charge d'Affaires a.i. Leslie V. Rowe. Reasons 1.4 (b,d)


1. (C) SUMMARY. The Acting Foreign Minister has expressed
surprise and disappointment at the June 9 court decision to
release four major terrorism suspects, but admits there is
little that can be done publicly to mitigate the damage. The
Kenyan Government is hesitant to file an appeal and remains
pessimistic about the June 21 outcome in the related
conspiracy trial. It is nonetheless committed to the
development of a stronger case against the sole suspect
re-arrested June 9 on additional charges and to the long-term
surveillance of the three released suspects. There is growing
realization within the Government that the lack of
coordination and cooperation between police and prosecutors
during the investigation phase ultimately undermined the
state's case. Leads developed by the USG-funded GOK Joint
Terrorism Task Force, which made possible the re-arrest of
one of the defendants, have underscored the importance and
benefits of inter-ministerial cooperation. Upon learning that
Task Force activities were recently suspended by the Police
Commissioner, the Acting Foreign Affairs Minister pledged to
push his cabinet colleagues to stop warring factions and
police intransigence from undermining a critical
counter-terrorism tool. END SUMMARY.


2. (C) Charge met with Acting Foreign Affairs Minister Moses
Wetangula June 10 to express the USG's dismay over the June 9
court decision releasing, on the basis of insufficient
prosecutorial evidence, four suspects in the 2002 Kikambala
terrorist attacks, thus ending the twenty-seven month murder
trial. (Ref A.) (NOTE: The four suspects were Omar Said
Omar, Aboud Rogo, Mohammed Seif Kubwa and Ali Saleh Nabhan.
END NOTE.) While noting USG satisfaction with the re-arrest
of Omar Said Omar on additional charges a few hours after the
June 9 ruling, Charge emphasized that neither the U.S.
government nor the Kenyan government had any doubt about the
four's involvement in the attacks. Charge underscored
ongoing U.S. concerns about Aboud Rogo, Mohammed Seif Kubwa
and Ali Saleh Nabhan's release, particularly in light of the
Embassy's own past history with terrorism in Kenya.


3. (C) The one bright spot in this latest counter-terrorism
setback, she noted, was Post's close working relationship
with the minstries of Justice, Internal Security, the
Department of Public Prosecutions (DPP) and the Kenya Police
Service (KPS). Follow-on investigations to the Kikamabala
attacks had been initiated by these entities grouped within
the USG-funded GOK Joint Terrorism Task Force. Given the Task
Force's key role in the re-arrest of Omar Said Omar, the
recent breakdown in relations between KPS and DPP in the Task
Force was discouraging. Charge urged Wetangula to speak with
his colleagues in the Internal Security Ministry (which
oversees KPS) and the Ministry of Justice and Attorney
General's Office (which oversee DPP) to continue to support
the concept and functionality of the Task Force.


4. (C) Wetangula emphasized that Kenya shared America's
disappointment with the ruling, noting his personal surprise
and distress over the decision. He speculated that the
judgment likely stemmed from "structural weaknesses" in the
prosecution, but argued against holding the entire judiciary
responsible for flaws in the presentation of evidence. He
stressed the government's collective agony over the decision,
but argued future public actions are constrained by the
judiciary. Although the Attorney General will explore the
possibility of an appeal, Wetangula -- an attorney by
training -- was pessimistic on the subject, and similarly
skeptical on the outcome of the June 21 conspiracy trial.


5. (C) Wetangula agreed with the Charge's assessment of Rogo,
Kubwa and Nabhan's guilt, stressing that this "fact" was the
driving force behind the decision to subject the three to
monitoring and surveillance "for as long as it takes." When
queried about the sustainability of such surveillance,
Wetangula responded that "characters like this are capable of
doing it again, therefore we will be on our toes throughout."
(COMMENT: Post has reservations about the efficacy and
feasibility of immediate, long-term surveillance. COMMENT.)


6. (C) With little prodding, Wetangula acknowledged that the
Kenyans' lack of progress on this and the related June 21
conspiracy case were linked to legal loopholes easily
redressed through the passage of legislation such as the
Suppression of Terrorism Act. Parliament's House Business
Committee had been discussing "fast-tracking" the
legislation, and come October it could be tabled before
Parliament. The Charge questioned this assessment, noting few
MPs considered such legislation a priority, particularly
given the vocal concerns of civil society. Moreover, she
stressed, the already tabled Evidence Act (Amended) presents
the Kenyan government with sound methods through which to
prosecute future terrorist cases. Why not concentrate
efforts on securing its passage through Parliament? Acting
FonMin replied that he had "no doubt that the Act would pass"
before Parliament's summer recess. (NOTE: MPs frequently
report to EmbOffs that the Evidence Act's chances of passage,
at least before the December rise of the house, are quite
strong. END NOTE.)


7. (C) The Acting FonMin expressed genuine surprise at the
news of the Task Force's suspension, and committed himself to
exploring how he and his cabinet colleagues could get the
initiative back on track. Wetangula was well-versed on the
Task Force, DPP's contributions thus far, and on plans to
make the former Law School building the future site where
police and prosecutors working on counter-terrorism issues
and in the Task Force would be co-located. He maintained that
the Kenyan Government was not relaxing on the issue of
terrorism and crime generally, and that, with respect to the
Task Force, this was a shared commitment from which the his
government would not withdraw. He urged the Charge against
"linking critical issues such as fighting terrorism and crime
to anything else."


8. (C) COMMENT: The meeting with Wetangula was upbeat,
despite his despondence over the lack of options open to the
GOK at this stage. Wetangula appeared well-apprised of the
task in front of the GOK, and confident of the measures in
place to tackle the challenge. With many of the Kenyan
government's heavy hitters in the CT arena out of the
country, Wetangula did his best to underscore the GOK's focus
on the issue. END COMMENT
ROWE