KENYA CONFIRMS INTENT TO PROSECUTE U.S.-CAPTURED

UNCLAS SECTION 01 OF 02 NAIROBI 000462 SIPDIS SENSITIVE E.O. 12958: N/A TAGS: PHSA MOPS EAID ASEC PTER PREL SO KE SUBJECT: KENYA CONFIRMS INTENT TO PROSECUTE U.S.-CAPTURED PIRATES; SEEKS EVIDENCE AND TESTIMONY ¶1. (SBU) SUMMARY: Kenyan authorities confirm their intent to proceed to prosecute and bring to trial in coming days the 10 Somali pirates captured January 22 by U.S. forces. They seek immediate transfer to Kenyan authorities any/all items of evidentiary value still in U.S. hands. The nation's chief prosecutor also enquires as to possible U.S. testimony of the capture in international waters so as to persuade Kenya magistrate that Kenya indeed has legal jurisdiction to prosecute. ACTION REQUEST: See Para 5. END SUMMARY. ¶2. (SBU) KENYA SAYS "YES": Keriako Tobiko, Director of Kenya's Department of Public Prosecutions, confirmed to PolCouns afternoon of February 1 that Kenya indeed intends to proceed with prosecuting the 10 Somali pirates captured by the U.S. Navy in international waters (reftel). Tobiko, who had just departed from a Foreign Ministry-led inter-ministerial meeting on the subject, stated that the Embassy would soon be receiving a formal diplomatic note to that effect. He also noted that given the complexities of the case and the high stakes involved in ensuring Kenya obtains a conviction, the decision was made for the prosecution to be handle by trained DPP prosecutors vice police prosecutors (who are currently in charge of the investigation phase). Tobiko has just summoned to Nairobi the lead police and DPP prosecutors from Mombasa to review the case with him the morning of Febrary 2. ¶3. (SBU) "FULL STEAM AHEAD:" Tobiko stated that the current plan is to have the ten pirates arraigned in court as soon as Friday, February 3. He is seeking a trial to begin as soon as Monday, February 6, and predicted that it might last a week or so. (NOTE: It appears the Indian dhow and crew will be held at least until February 3, possibly throughot the trial. END NOTE.) Tobiko noted that Kenya is taking the case and its international obligations "very seriously." Asked about possible Indian prosecution, he stated that the Indian High Commission has been involved, and that out of respect and comity, the Government of India would also be formally advised of Kenya's intent to proceed with prosecution. (He has not heard whether India seeks to prosecute or not.) ¶4. (SBU) WITH A REQUEST FOR HELP: Tobiko requested, as have Kenyan police prosecutors previously, that all evidence, reports and statements by naval officers, as well as anything else of evidentiary value in NCIS possession be forwarded to Kenyan authorities as soon as possible. (NOTE: The FBI continues to provide support for Kenyan prosecution efforts and remain in Mombasa currently to support that effort. END NOTE.) Tobiko also noted that Kenyan jurisdiction only attaches if the pirates were in Kenyan territorial waters (not the case) or on the high seas (as was the case) when captured. Written statements to that effect, he noted, were only of minimal use in Kenyan courts, however. He feared that a good defense lawyer could have the case thrown out if there were not a U.S. witness to the actual capture available to testify to the exact location of the vessel when captured. He thus enquired as to the availabilty of a U.S. witness to testify in court, perhaps even for just one day, in court the week of February 6. ¶5. (SBU) COMMENT AND ACTION REQUEST: The speed and intensity of Kenyan engagement on this case remains nothing short of extraordinary. (Especially as it occurs simultaneous to a major corruption scandal that saw the resignation of the Finance Minister just today.) Post seeks confirmation as to the transfer of any/all evidence yet to be turned over to Kenyan authorities. Post also requests guidance as to possible availability of at least one witness from the USS Winston Churchill (or elsehwere) who can testify that the pirated dhow was indeed in international waters when intercepted by the U.S. Navy. Please advise ASAP. END COMMENT AND ACTION REQUEST. BELLAMY