ARTICLE 98 AND ATTORNEY GENERAL WAKO

C O N F I D E N T I A L NAIROBI 004462 SIPDIS E.O. 12958: DECL: 10/24/2025 TAGS: PREL MASS PINS ECON SOCI PGOV KE SUBJECT: ARTICLE 98 AND ATTORNEY GENERAL WAKO REF: A. NAIROBI 2695 ¶B. NAIROBI 2446 ¶C. NAIROBI 2347 ¶D. NAIROBI 1173 ¶E. NAIROBI 0650 ¶F. NEW YORK 2428 Classified By: William M. Bellamy, reasons 1.4 (b,d) ¶1. (C) Summary: Despite intensive Embassy lobbying over the past year (reftel A-E),and the cutoff of FMF, IMET and some ESF funding pursuant to the ASPA and the Nethercutt Amendment, the Kenyan government still resists signature of an Article 98 agreement with the U.S. Academics, journalists, foreign governments and many Kenyan members of parliament regularly reinforce through speeches and public statements the GOK,s &brave8 stand against USG "arm-twisting.8 End Summary. ¶2. (C) While APSA sanctions penalize the Kenyan armed forces by reducing Kenya,s CT capabilities and cutting back on valuable bilateral interaction between our respective forces, the Kenyan military is loathe to lobby its political leadership. Within the GOK there is no/no constituency in favor of an Article 98 agreement, and little concern over the impact our sanctions are having on Kenya,s defense capabilities. While influential Kenyan cabinet figures would doubtless be interested in exploring some kind of quid pro quo with regard to Article 98 ) lifting the travel warning on Kenya, for example ) there is little we can, or should, offer as inducements for signing an Article 98 agreement beyond continuing to treat Kenya as a good and worthy ally. ¶3. (C) In a recent conversation with the Ambassador, Presidential Permanent Secretary Ambassador Muthaura confirmed that there had been no deliberation on the Article 98 issue within the GOK for some time. (Note: Parliament is now out of session, and cabinet has suspended all business until after the November 21 referendum. Little official business will be conducted by the GOK over the next five weeks. End Note.) In mid-August, Ambassador pressed Justice and Constitutional Affairs Minister Murungi on Article 98, and was told there was little chance the GOK would conclude a non-surrender agreement with the U.S. Murungi asked, however, whether the U.S. would be willing to accept a combination of the existing SOFA, covering U.S. military personnel in Kenya, and &oral assurances from the highest level of the GOK that no USG persons would be surrendered to the ICC.8 Murungi argued that this would give the U.S. what it wanted, but allow the GOK to finesse possible criticism from the many groups that are now applauding its &stand8 against the U.S. ¶4. (C) Embassy believes that Ambassador Bolton should meet with Attorney General Wako (reftel F),but without illusions as to his ability to sway the internal debate. Wako will be aware of the state of play within the GOK, and may provide some additional insights into the GOK,s resistance, but he does not have the standing, or the inclination to break the current stalemate, despite the fact that Nethercott restrictions will soon sharply limit current U.S. capacity-building support to Kenya's Department of Public Prosecutions, which falls in Wako's baliwick. Wako can be counted on, however, to carry back a strong message from the highest levels of the USG. This would be a welcome addition to the pressure the Embassy has applied these past months. BELLAMY