AG Wako sends Anglo-Leasing Files Back to KACC; Shell Game

C O N F I D E N T I A L NAIROBI 004631

SIPDIS

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DEPT FOR INL/C/CP KOHN, AF/EPS HASTINGS
TREASURY FOR WHYCHE-SHAW

E.O. 12958: DECL: 09/30/2026
TAGS: KCOR KCRM PREL ECON EFIN KE
SUBJECT: AG Wako sends Anglo-Leasing Files Back to KACC; Shell Game
Continues

REF: NAIROBI 4321

Classified By: Ambassador Michael E. Ranneberger for reasons 1.4 (B)
and (D).


1. (C) Summary: As predicted in reftel, Kenya Attorney-General Amos
Wako sent the files of 12 prominent people recommended for
prosecution back to the Kenya Anti-Corruption (KACC),saying they
were inadequate to ensure successful prosecutions in court. The
latest developments indicate that Anglo-Leasing prosecutions may be
unlikely prior to the December 2007 election. End summary.

AG Wako Sends Files Back to KACC
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2. (U) On October 2, KACC Director Justice Ringera sent the
investigation files of 12 officials implicated in the Anglo-Leasing
scandal, including five Ministers, to Attorney-General Amos Wako with
recommendations for prosecution. On October 18, Wako sent the files
back to the KACC, saying what had been presented to him was not
sufficient to ensure successful prosecutions in court. He identified
deficiencies that he and the staff of the Department of Public
Prosecutions (DPP) found in the files, and asked KACC to carry out
further investigations and re-submit the completed files in 30 days.
Wako encouraged KACC to consult the DPP Director Tobiko and his staff
"to ensure the files are complete when they are re-submitted to me
for final determination." Over the next few days, Wako and Ringera
publicly exchanged criticisms of the other's claims and defenses of
their own, leaving the issue unresolved.

Further Postponing any Prosecution
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3. (U) AG Wako's action continues the postponement of prosecution of
opposition Orange Democratic Movement (ODM) presidential hopeful
Musalia Mudavadi and former Cabinet ministers Chris Murungaru
(Transport and Internal Security),David Mwiraria (Finance) and Chris
Obure.
Other officials whose files were returned include former permanent
secretaries Dave Mwangi (Internal Security),Joseph Magari (Finance)

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and Cyrus Kyungu (Transport),a former financial secretary and four
former Government officials. All were implicated in five Anglo
Leasing-type projects totaling Sh22 billion ($293 million).


4. (U) Both Ringera and Wako have come under intense criticism for
their handling of the Anglo-Leasing investigation and the lack of
prosecutions. Ringera was embarrassed by former anti-corruption czar
John Githongo's statements about Ringera's reluctance to prosecute,
and complaints about KACC's high compensation and poor results. Two
weeks ago, a group of lawyers defending a lower-ranking official
noted that Wako had personally signed off on all the Anglo-Leasing
deals. MP Mutula Kilonzo and other questioned Wako's ability and
standing to prosecute the cases and called for Wako to resign.

Can the GOK Prosecute Anglo-Leasing Perpetrators?
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5. (C) The FBI legal attache at post believes KACC will not be able
to overcome the difficulties inherent in any historical corruption
investigation, such as voluminous documents and reluctant government
witnesses. He has advised KACC that addressing current corruption
would be a more effective use of its resources than trying to
prosecute Anglo-Leasing and other historical cases. He has offered
assistance on proactive investigative techniques, such as undercover
operations and informants. The Department of Justice Resident Legal
Advisor (DOJ/RLA) concurs that historical cases are more labor
intensive and difficult, but recommends we should continue to
encourage greater coordination and cooperation between the
Directorate of Public Prosecutions (DPP) and KACC to ensure that
Anglo-Leasing and other cases are thoroughly investigated and
prosecutable files are developed. He notes that Post has already
committed resources to DPP to build its capacity to prosecute complex
corruption and fraud cases. Both approaches would require more
political will from the GOK.

Comment
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6. (C) As predicted in reftel, Wako, Ringera, and the Kenyan legal
system are likely to keep the Anglo-Leasing shell game going until
the December 2007 elections. This will allow politicians to keep
flinging allegations and denials without ever facing real
prosecution. Given President Kibaki's unwillingness to act against
the perpetrators revealed in John Githongo's dossiers and recordings,
political accountability in grand corruption cases may have to wait
until after the December 2007 election. Even if the GOK found the
political will to prosecute, the time elapsed since the contracts

were signed and the difficulty of obtaining evidence and testimony to
prove guilt in court will make it very difficult for KACC and DPP to
obtain and/or sustain any Anglo-Leasing convictions.

Ranneberger