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