THOUGHTS ON THE DIALOGUE WITH KENYA AT THE

C O N F I D E N T I A L SECTION 01 OF 06 NAIROBI 001635 SIPDIS SIPDIS DEPT FOR AF/E, AF/EPS, EB/IFD/OMA USAID FOR A - DAA/AFR WADE WARREN, AFR/EA JEFF BORNS AND JULIA ESCALONA MCC FOR KEVIN SABA AND MALIK CHAKA TREASURY FOR LUKAS KOHLER LONDON AND PARIS FOR AFRICA WATCHERS E.O. 12958: DECL: 4/13/2031 TAGS: ECON PREL EAID EFIN KCOR PGOV PINR KE SUBJECT: THOUGHTS ON THE DIALOGUE WITH KENYA AT THE UPCOMING IMF/WORLD BANK MEETINGS Refs: A. Nairobi 1614, B. Nairobi 1560, C. Nairobi 1439, ¶D. Nairobi 1114, E. Nairobi 661, F. Nairobi 527, G. Nairobi 395 Classified by Econ Counselor John Hoover for reasons 1.4 (B) and (D). ¶1. (C) Summary: In light of recent events in Kenya, Mission Nairobi recommends a tough-but-balanced approach in bilateral meetings between USG policymakers and the Kenyan delegation visiting Washington in late-April for the annual IMF/World Bank meetings. Washington policymakers can expect an articulate charm offensive from the Kenyan team, but should put the points raised by the Kenyans in context, and remind them of our concerns about media freedom and the need for more concrete actions in dealing with the mega- scandals of the day. For the sake of optics, Mission Nairobi recommends that Washington keep Kenya's Millennium Challenge Corporation (MCC) Threshold Program Concept Paper informally on hold until June. We would in the meantime welcome a visit to Kenya by the MCC. Suggested talking points/themes for use by Washington policymakers in their meetings with the Kenyan delegation follow below in para ¶10. This is a joint Embassy-USAID message. End summary. -------------- -------------- Background: Perspective for IMF/World Bank Meetings -------------- -------------- ¶2. (C) In ref G, transmitted in late January, U.S. Mission Nairobi spelled out its views on the right stance for the USG to take with regard to Kenya's IMF and MCC Threshold programs. In a nutshell, we argued that the government's response to the explosive and credible allegations of grand- scale graft and cover-up within President Kibaki's inner circle had been inadequate, illustrating again the lack of genuine political will at the leadership level to combat corruption and change the political culture by example. We therefore urged selective approval only of any upcoming new assistance programs or credits from multilateral lenders. We specifically recommended postponing IMF Board consideration of the 2nd review of Kenya's IMF program, and putting on "pause" formal consideration and approval of Kenya's otherwise technically-sound MCC Threshold Program Concept Paper. We urged these actions not to disengage, but on the contrary, to send a strong signal to the Kenyan leadership that we, in close coordination with other key donors, could not engage in business-as-usual in the absence of political will and concrete actions in the fight against graft. -------------- Recent Developments: Good News, Bad News -------------- ¶3. (SBU) In view of the upcoming IMF/World Bank meetings in Washington, to which Kenya will be sending a talented and high-level delegation (see para 7),Mission Nairobi thought it would be useful to review what has happened on the ground in Kenya since late January, put these developments in perspective, and to suggest some general points for Washington's use in bilateral meetings with Kenya's delegation on the margins of the IMF/Bank meetings. First, the good news, much of which is at least partly the result of the concerted pressure we and other donors (often in concert with even more powerful public pressure) have since exerted. These developments include: -- The resignation of two ministers in response to the Anglo-Leasing revelations, and a third following publication of the Goldenberg Report. This marked a first for political accountability in the Kibaki administration. (Ref E). -- Publication (with only minor GOK resistance) and debate in Parliament of the Public Accounts Committee (PAC) report on the Anglo-Leasing and related scandals. (Ref C). -- Public statements by the new Minister of Justice that the GOK will fully and thoroughly investigate and prosecute cases of wrongdoing brought to light in the Githongo dossier, the Goldenberg Report, and the Ndungu Land Report. NAIROBI 00001635 002 OF 006 -- Orders by police to a series of individuals implicated in the Anglo-Leasing and Goldenberg scandals to surrender passports and firearms. -- The reopening of investigations into the Anglo-Leasing and related scandals and the Goldenberg affair by the Kenya Anti-Corruption Commission (KACC). -- The start of prosecution against five former high-level government officials and businesspeople implicated in the Goldenberg scandal. -- The international verification and transparent destruction of a year-old 1.25 ton cocaine seizure in response to months of UN, UK, and U.S. pressure. (Ref B). -- Slow but incremental progress on a series of legal and institutional reforms, including procurement reforms, public expenditure management reforms, civil service reform, and privatization. ¶4. (SBU) On the downside: -- Indications that the leadership will go no further in enforcing political accountability in the Anglo-Leasing and related cases, despite clear evidence of complicity on the part of the Vice President and the head of the civil service. -- President Kibaki himself, either deliberately or through default, is disengaged on the question of corruption -- an absence that fundamentally undermines any efforts within the GOK to address the problem. He has yet to speak out, in public or private, on the role he and members of his inner circle played in the Anglo-Leasing scams. -- No transparency regarding KACC or other investigations into senior government leaders. No timetable or deadline set for the resolution of cases. -- KACC Chief Ringera has decided that he cannot and will not pursue high-profile cases. Thus the circles of corruption immediately surrounding the Presidency appear to be off limits. -- No current prosecutions have been launched against senior members or former senior members of the current government. No illegally acquired land or assets have been recovered in any major corruption cases. -- Illegal midnight raid in March by hooded members of the security forces on a major media organization. The GOK continues to offer no apology or explanation beyond a vague "national security" justification for this egregious violation of press freedom and clear effort to intimidate the opposition. (Ref D). -------------- Is Anyone in Charge? -------------- ¶5. (C) The police raid against a major media house was perhaps the clearest indication to the Kenyan public and donors of the malaise and desperation that characterize the current administration. Not only did it constitute a dangerous infringement on freedom of the press, but in the aftermath, also illustrated that no one seems to be in charge at the leadership level in Kenya. We cannot discount similar egregious actions in the future, in large part because individual ministers and key insiders at State House appear able (and willing) to use the levers of power with impunity to further their own personal interests, without the authorization of the President or broader coordination with the entire Cabinet. President Kibaki is indecisive at best, but by most accounts is sound asleep at the wheel, disengaged from, and oblivious to, the political realities around him (ref F). -------------- Hope for the Best, But Anything is Possible -------------- ¶6. (C) It is precisely in this context - that of an NAIROBI 00001635 003 OF 006 unpopular, narrowly-based government increasingly desperate to maintain its hold on power and in which no one is in charge - that we fear virtually anything could happen. Policy drift is a given. Beyond that, we could well see additional illegal attempts to stifle the press and/or the political opposition, the stirring up of ethnic animosities, or worse. As individuals and factions look to the 2007 elections, there will also be renewed incentives and pressures to steal money on the part of politicians desperate either to fund re-election campaigns, or to simply grab what they can while they still hold office. We saw an early indication of this dynamic when the GOK recently hiked allowances for ministers and assistant ministers by a factor of five, further fueling the image of extravagance and abuse of power at a time when the GOK is also asking the international community for $350 million to combat starvation in drought-stricken parts of the country. In the meantime, in the absence of political will at the top, key corrupt figures inside the GOK and in the private sector have concluded that they have little to fear. -------------- What the Kenyans Will Say in Washington -------------- ¶7. (C) However, there is a relatively competent and relatively untainted leadership group within the recently re-made 34-member Cabinet, centered around Raphael Tuju (Foreign Affairs),Martha Karua (Justice),Mutahi Kagwe (Information and Communications),and Amos Kimunya (Finance). This group, together with their Permanent Secretaries, has become the new "acceptable face" of the SIPDIS GOK to both the Kenyan public and the international community. In fact, Kimunya and Karua, joined by their PS's and KACC Director Aaron Ringera, are expected to constitute the GOK's delegation to the IMF/World Bank meetings. Kagwe plans a separate visit to the U.S. in May. Based on their remarks at a one-day "Stakeholders Forum" on economic development and governance held in Nairobi April 10, Washington can expect to hear the following messages from the GOK delegation: -- Kenya is still in transition; political and economic conditions now are vastly improved from the previous regime. -- In this transition, Kenya needs patience and understanding from its development partners. There will be setbacks, but the trend line is positive. -- The GOK is unequivocally committed to fighting graft. -- But the war on corruption is a long one, and in this war, institutions and laws are more important than individual cases and people. -- Many of the governance problems plaguing Kenya are problems of perception, not reality, and this is due to the greater "political space" and transparency afforded by the NARC government. -- The GOK is drafting a new National Action Plan Against Corruption for this longer-term effort, to complement the short-term orientation of the year-old Anti-Corruption Action Plan. -- The KACC is fully staffed with competent professionals, and is aggressively pursuing corruption cases, no matter how high they go. -- The GOK is moving forward with new legislation and a series of institutional reforms (procurement, civil service, public expenditure management, and privatization) and needs donor support. -- On media freedom, national security was at stake in the case of the recent police raid. The means were probably excessive, but action was necessary. -------------- How We Should Respond -------------- NAIROBI 00001635 004 OF 006 ¶8. (C) We should be mindful of these points, some of which are valid to some extent, and which thus need to be factored into our approach to Kenya in the context of IMF, World Bank, and our own assistance programs. At the same time, Washington interlocutors should be aware that everything they will hear from this "acceptable face" are standard arguments, recycled from similar presentations a year ago or more. The only novelty is the line-up that presents them. What they will say has been heard and rejected already by the Kenyan public, and their hope is that foreign audiences, perhaps weary from a seemingly endless struggle to compel the GOK to focus on serious corruption matters, will with relief grasp this presentation as something new and promising. In short, Washington interlocutors should be aware that Kimunya and his colleagues visiting Washington unfortunately do not represent the center of gravity within the Kenyan political elite, and that they earned their travel orders precisely to put a good face on an ineffective, unpopular administration increasingly desperate to stay in power at almost all costs. ¶9. (C) The oft-delayed 2nd review of Kenya's IMF program is scheduled for a Board vote in June. The Bank's budget support credits won't go to the Bank Board until sometime after June, following the conclusion of in-depth diagnostic audits of existing Bank programs in Kenya. Indefinitely delaying either of these processes is neither sustainable nor desirable. But we should use the leverage afforded by these programs and by the interval of time between now and June to press for more action on the corruption front, and for stronger assurances that the March media raid incident was an aberration that will not ever be repeated. ¶10. (SBU) With this in mind, Mission Nairobi recommends a balanced approach to the GOK delegation, one which gives credit where credit is due and supports ministers like Kimunya, but which also raises our concerns about governance and reform and the need for more action. We recommend weaving the following points and themes into talking points for discussions with the GOK delegation in Washington later this month: Corruption/Governance -------------- -- Recent resignations of Cabinet ministers are unprecedented in Kenya, and reflect an admirable maturation in the political system towards greater accountability. -- Kudos also to the GOK for the recent transparent destruction of the record cocaine shipment. -- Actions like these are very important. They have done more to repair Kenya's image than any statement or action plan issued recently by the government. They are perfect illustrations of the need for concrete action, as opposed to rhetoric, in the fight against corruption. -- We would urge you to take more action now. The recommendations of the PAC report on Anglo-Leasing, and the Goldenberg and Ndungu Land Reports, provide perfect opportunities to show the GOK is sincere in fighting high- level corruption. -- To be credible, these actions need to be transparent, even-handed and non-partisan. They must not spare any "big fish," and must not focus only on past cases at the expense of more recent scandals involving the current government. -- Another opportunity to show you're serious is the GOK's handling of reports of a mega-money laundering and tax evasion operation, which includes a recommendation from the Central Bank to close a local bank. Money laundering is a serious concern for us. What is the status of this case? (Note: See ref A for background). Reforms and Political Will -------------- -- We understand the GOK receives insufficient credit in the public eye for the many very important institutional reforms taking place "below the radar screen." NAIROBI 00001635 005 OF 006 -- We are following these reform efforts and appreciate the efforts being made. We are fully supportive and want to help in any way possible. -- But the political will for genuine reform is at times lacking. We've been trying for several years, for example, to improve capacity in the Department of Public Prosecutions, a major bottleneck in the chain of justice. -- But despite a great deal of rhetoric and appeals for more resources from donors, the GOK has been unwilling to make the structural reforms needed to make success possible. -- We are continually frustrated by this disconnect between rhetoric and action on the GOK's part. Political Space and Media Freedom -------------- -- We appreciate the political maturation that has occurred in Kenya during the current democratic transition. -- However, the "political space" that now exists in Kenya was created by and belongs to the people of Kenya. It is not something the GOK can give or take away. -- In this light, we remain extremely disturbed by the recent police raid against a major media house in Kenya. -- There is no place for such measures in a democracy like Kenya's. -- Thus far, we are not satisfied with the vague response from the GOK justifying the raid on national security grounds. We remain concerned that similar actions could take place again. IMF/World Bank Programs -------------- -- We want to see the 2nd review of the IMF program approved by the IMF Board in June, and we'd like to see the World Bank's budget support credits move ahead too, once the Bank completes its diagnostic audits, and assuming those audits don't uncover more problems. -- To win our strong support, and the support of other shareholders to move these programs forward, however, the GOK needs to communicate unambiguously to its own people and to the international community that it is serious in delivering on the two issues on which it was elected: economic development and ending corruption. -- Actions, not rhetoric or action plans, are the best way to prove your real intentions as a government and to create an environment conducive to moving the IMF and World Bank programs forward. -------------- MCC Threshold: Next Steps -------------- ¶11. (C) Mission Nairobi recommends that consideration of Kenya's MCC Threshold Program Concept Paper be kept informally "on hold" until June, after which we should look favorably on moving to the next phase of the Threshold process. On substance, the Concept Paper, which focuses on national public procurement reform and its application in the Ministry of Health, is sound, though not without risks given the deep roots of corruption in the Ministry. However, we are perhaps seeing a glimmer of hope with the recent decision by the Ministry to begin to reform its procurement practices in response to intense pressure from the U.S. and other donors to the UN's Global Fund Against AIDS, Tuberculosis and Malaria. If that kind of pressure is a "stick," programs like the MCC Threshold proposal can serve usefully as a "carrot," providing real assistance to the Ministry as it tries to develop tighter procurement systems as a way to seal the loopholes used to siphon off funds in the past. NAIROBI 00001635 006 OF 006 ¶12. (C) Content and substance not being major issues, we recommend that Washington consider timing, optics, and coordination with other major donors. Given the high- profile nature of the MCA, public approval now would be construed and played up publicly by the GOK as a USG seal of approval. This would be premature and might be perceived as reducing pressure on the GOK to take further steps on the corruption front in the best case, or in the worst case, to at least constraining the worst elements in the leadership from launching media raids or taking similar dangerous and irresponsible actions in the run-up to the 2007 elections. Bellamy