KENYAN ATTORNEY GENERAL: "DON'T DOUBT OUR WILL ON

C O N F I D E N T I A L NAIROBI 004105

SIPDIS

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS

E.O. 12958: DECL: 09/19/2026
TAGS: PGOV KDEM PREL KCOR KE
SUBJECT: KENYAN ATTORNEY GENERAL: "DON'T DOUBT OUR WILL ON
CORRUPTION"


Classified By: A/Political Counselor Craig White for reasons 1.4 (b,d)


1. (C) SUMMARY: Kenya Attorney General Amos Wako told the
Ambassador on September 12 that the absence of prosecutions
in major corruption cases was not for lack of will, but is a
matter of capacity. The Ambassador made clear that the cloud
of high-level corruption hangs heavy, shadowing some positive
reform efforts in the ministries and civil service. While
Wako maintained that his office had cleared the last of the
procedural hurdles standing in the way of effective
prosecution, the reality is that serious systemic
inefficiencies in the judicial system remain, conspiring
against success in prosecuting high-profile corruption cases.
END SUMMARY.


2. (SBU) The Ambassador had his first meeting on September
12 with Kenyan Attorney General (AG) Amos Wako, who outlined
challenges he faces in fighting corruption and the progress
he is making despite the obstacles. The Ambassador
highlighted as an example of the U.S.-Kenya partnership the
extensive cooperation between the AG's office and its
Department of Public Prosecutions (DPP),and the Mission's
Department of Justice Resident Legal Advisor (DOJ RLA) and
USAID Democracy and Governance Office. Among the areas of
collaboration are the RLA-hosted workshop to support Kenyan
development of plea bargaining legislation, joint efforts to
professionalize the DPP, the prosecution of Somali pirates,
and the development of a prosecutors' training curriculum.
Wako welcomed the importance of the U.S.-Kenya partnership,
acknowledging the broad range of on-going cooperative
activities.

Blame the System, Not Me
--------------


3. (C) The Ambassador emphasized the need for results on
grand-scale corruption, against which there has been plenty
of rhetoric, but little in terms of prosecution.
"Historically, shoddy prosecutors, shoddy investigations, and
probably some corruption," were to blame, Wako said, for the
DPP's ineffectiveness in prosecuting high-level corruption
cases. Corruption in the courts during the Moi era, he
continued, allowed a wealthy man like Kamlesh Pattni, accused
in the massive Goldenberg scandal, to keep moving his case
from court to court, never facing the charges.


4. (C) The current NARC government is committed to rooting
out corruption, but the donor community placed all its
emphasis on the Kenya Anti-corruption Commission (KACC),
ignoring the importance of a strong judicial system and
prosecutors, Wako asserted. The KACC is able to offer much
higher salaries, and has lured away DPP staff. (NOTE: The
U.S. has not provided funding to the KACC since its
independence was called into question with John Githongo's
resignation, and the donor community provides little, if any.
It is primarily the Government of Kenya, not donors, which
has failed to invest resources in the DPP. END NOTE.) Wako
argued that he and his DPP have also had to contend with
gaping legal loopholes, exploited by high-priced lawyers, in
particular the provision that allows an individual under
prosecution to appeal to the constitutional court,
effectively staying the case indefinitely.

But We're Getting Somewhere Now
--------------


5. (C) Despite the challenges, Wako told the Ambassador, the
AG's office and the Kenyan government are making progress in
bringing Kenya's most corrupt to justice. Most
significantly, as of early 2006, objection to prosecution on
constitutional grounds no longer stays a case. This has
rejuvenated a number of previously "blocked cases," including
those of a number of high level former government officials
who are now being prosecuted. In addition, Wako said,
President Kibaki recently delivered a directive authorizing
the AG to hire 26 new (professional, higher paid)
prosecutors. Wako has brought on a special prosecutor for
the Anglo Leasing case. The AG also presented the Ambassador
with a thick dossier of all cases referred to him from the
KACC from January 2005 through June 2006. "I have taken
action on 100 percent of them," he announced. Wako explained
that he intends to appeal the court ruling exonerating former

Vice President George Saitoti in the Goldenberg scam. "If I
didn't have the will," he said, "I would have just accepted
the decision."

Legislation: Money Laundering and Trafficking
--------------


6. (SBU) Updating the Ambassador on two pieces of
legislation of particular interest to the U.S., Wako reported
that a money laundering bill is "ready." In addition to
finalizing the draft bill, a number of complementary
amendments to existing legislation were needed, as well.
Both halves of this key law are now prepared and Wako expects
the Treasury to submit the bill to him shortly, before it
goes to Parliament. Anti-trafficking in persons legislation
is still a way off, Wako said. A prominent children's rights
NGO has produced a draft law, but it is the Ministry of Home
Affairs which has responsibility for bringing it forward.

COMMENT
--------------


7. (C) Wako talks a good game, but the jury is still out
regarding his true intentions and determination to bring
cases to conclusion. Some barriers to prosecution are
orchestrated - put up by moneyed subjects of investigation
bribing their way to indeterminate case delay - and others
are systemic - symptoms of a judicial system riddled with
loopholes, particularly for the powerful. Still other
barriers to effective prosecution include lack of resources
and capacity. The Mission will continue to provide support
to strengthen the DPP's ability to professionally prosecute
criminal cases, with an emphasis on terrorism and
corruption-related issues. The Mission will continue to
press for decisive action against corruption as a high
priority. END COMMENT.
RANNEBERGER