MT. ELGON: STATUS OF INVESTIGATIONS ALLEGATIONS OF

C O N F I D E N T I A L SECTION 01 OF 05 NAIROBI 002253

SIPDIS

LONDON AND PARIS FOR AFRICA WATCHERS
AF/E FOR MARIA BEYZEROV
AF/RSA FOR MIKE BITTRICK
DRL FOR MOLLIE DAVIS
INR FOR MOZELLA BROWN

E.O. 12958: DECL: 09/24/2018
TAGS: PHUM PREL PGOV KDEM MOPS MASS KPKO KCRM KE
SUBJECT: MT. ELGON: STATUS OF INVESTIGATIONS ALLEGATIONS OF
HUMAN RIGHTS ABUSES BY SECURITY FORCES

REF: A. IIR 6 854 0252 08

B. NAIROBI 1328

C. IIR 6 854 0232 08

Classified By: Ambassador Michael E. Ranneberger for reasons 1.4 (b) an
d (d)

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SUMMARY
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1. (C) In late July, the international NGO Human Rights Watch
(HRW) issued a second, more detailed report alleging security
forces' involvement in serious human rights violations during
the joint military-police operation against the Sabaot Land
Defense Force (SLDF) in Mt. Elgon in March-April 2008. We
take seriously HRW's allegations. The Minister of Internal
Security and Provincial Administration released its report on
a joint police-army investigation into the allegations on
July 30; the report absolves security forces of all
wrongdoing. This conclusion contradicts an earlier
preliminary Ministry of Defense investigation which found
some allegations of abuse credible, but denied the military
personnel were responsible for any abuses (ref c). The
Ministry of Internal Security report made little effort to
determine whether human rights abuses occurred or how they
occurred, but rather attacked the credibility of the human
rights NGOs and their allegations. We do not find this
report and investigation to be credible, impartial, or
transparent. Subsequent to the release of the report, police
in Mt. Elgon district arrested two persons who had assisted
NGOs in documenting abuses. While the government continues
to deny that security forces perpetrated any abuses, two
parliamentary committees made a joint visit to the area on
August 16-17. Their report may recommend punitive measures
against members of the security forces for human rights
abuses. The Ambassador has recently discussed the need for
impartial, transparent investigations of allegations of human
rights abuses in Mt. Elgon with both President Kibaki and
Prime Minister Odinga. We are examining ways to strengthen
our Leahy Vetting procedures to ensure that no individuals
implicated in abuses receive USG assistance. End Summary.

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Human Rights Watch Calls For
Independent Investigation
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2. (U) On July 27, Human Rights Watch (HRW) issued its
second report on the Mt. Elgon security operation, which
details a disturbing pattern of abuse throughout the Mt.
Elgon region. The report acknowledges the civilian
population's gratitude for the success of the joint
military-police operation to defeat the Sabaot Land Defense
Force (SLDF),which had terrorized the region since 2006,
killing approximately 750 people and torturing thousands.
Despite their relief at their new freedom from SLDF abuses,
many civilians recounted horrific tales of abuse at the hands
of the security forces. According to HRW, interviewees from
multiple locations told similar stories of being forced to
sing songs of praise to the army while being transported to
the military camps. While at the camps, military personnel
forced detainees to beat or bite and occasionally sexually
abuse each other. Many reported receiving beatings from
military and/or police officers.


3. (C) Deputy Polcouns and Poloff met with the author of the
HRW report, Ben Rawlence, on July 29. Rawlence noted he had
interviewed civilians in multiple locations throughout the
Mt. Elgon region who had been detained, screened, and then
released due to lack of evidence that they were SLDF members.
Rawlence emphasized that interviewees were not facing
criminal charges and, hence, had no incentive to cast
aspersions on security forces. Also, the allegations of
interviewees were strikingly similar across different tribes
and different parts of the wider Mt. Elgon region, he said.

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4. (C) Rawlence told Poloff that he had independently
received information from a military intelligence official
that the 20th Parachute Battalion had operational command of
the Cheptais and Kopsiro divisions and that the 1st Kenya
Rifles were in charge of the Kaptama division. (Note: A
division is a small administrative unit similar to a ward,
consisting of several villages. End Note.) This information
contradicts earlier Kenyan Ministry of Defense
representations that the military role was restricted to
operations to flush SLDF out of the high reaches of the
mountains and to provide a security cordon for police
operations in the inhabited lower reaches of the mountain.

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Kenyan NGO Accuses Army of
Torturing SLDF Torture Survivors
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5. (U) A Kenyan human rights NGO, the Independent Medico
Legal Unit (IMLU),on August 28 released its second report on
abuses in the Mt. Elgon region. In its report, IMLU alleged
that the army detained survivors of SLDF torture to gather
intelligence against the SLDF, and tortured them to obtain
information. (Note: The SLDF frequently mutilated people who
refused to join or pay "taxes," frequently cutting off one
ear or, less frequently, a finger or hand, so some SLDF
torture victims can be easily identified. End Note.) Of 285
persons interviewed by IMLU, 27 percent claimed to have been
tortured by both the SLDF and military personnel.


6. (C) IMLU has assisted two people in filing court cases
against the government. The first hearing for one of the
cases, Mokoit vs. the Defense Council and Attorney General of
Kenya, took place on September 16. At that hearing, the
parties agreed they needed more time to prepare to exchange
evidence. No further hearing date has been set at this time.
It appears that the calendar of the court with jurisdiction
over this matter is booked until mid-2009. The Kenyan
Ministry of Defense has submitted a request to the Chief
Justice to convene a special hearing to consider testimony
related to Mt. Elgon abuse allegations. They have not yet
received a response to this request. In the Mokoit case, the
plaintiff alleges that his beating by government security
forces violated his constitutional rights. The second case
is a habeas corpus case filed by the wife of Senior Assistant
Chief of Chepwek Location, Cheptais Division Patrick Sewui,
who was arrested by military forces and last seen on April

27. According to the IMLU staff, the government has not yet
filed a response in either case. IMLU staff are looking at
other venues for filing test cases, such as the International
Criminal Court and the East African Court of Justice, because
are concerned that the Kenyan judicial system will not be
impartial. (Comment: According to military sources familiar
with the Mokoit case, it will be an easy win for the
government, as the plaintiff's wife is ready to testify that
Mokoit's beatings were at the hands of the SLDF. End
Comment.)

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Government Report Clears
Security Forces
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7. (C) On July 30, Minister of Internal Security George
Saitoti unveiled the report of an investigation of
allegations of human rights abuses against police and
military forces in Mt. Elgon during March and April 2008.
The report concluded that that NGO allegations were,
"mischievous, baseless, and compounded on hearsay (sic)." To
the extent that it addresses the substance of the
allegations, the report lays blame for any and all abuses on
SLDF and forcefully attacks the credibility and methodology
of NGOs. Its conclusions differ from an earlier preliminary
investigation undertaken by the Kenyan Ministry of Defense,
which found some allegations of human rights abuses credible,

NAIROBI 00002253 003 OF 005


and only contested whether the military perpetrated them (ref
c).


8. (U) The release of the report is not the first government
effort to portray the Mt. Elgon security operation in a
positive light. In early July, Poloff traveled with the
Ministers of Internal Security and Defense to the Mt. Elgon
region to view the situation on the ground. The Ministers
were keen to show the joint security operation as a success
and to counter allegations of human rights abuses. The
ministers visited three locations in the district, including
the Kapkota camp where abuses allegedly took place. Adoring
crowds greeted them at each location, complete with
silk-screened signs praising the security operation and
demonizing human rights NGOs. Interestingly, the same signs
(and people holding them) were transported from the first to
the third location, which were far apart. Although residents
of the Mt. Elgon region are genuinely grateful to see the
SLDF on the run, the rent-a-crowd nature of the event was
underscored by the presence of military trucks which were
still unloading "protesters" when poloff arrived at the
scene. (Note: A credible NGO source told poloff that the
military provided the signs and paid participants to attend.
End Note) Camera crews filmed the event and clips from the
day were played in high rotation on local TV stations.
During the trip, high ranking members of the police and the
Ministry of Defense took pains to bad-mouth NGOs and their
allegations of human rights abuses.

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GoK Intimidates NGOs Through
Arrests, Restricting Access
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9. (U) Police in the Mt. Elgon region in August arrested two
persons who were directly involved in the documentation of
abuses. The first is Dr. Walter Nalianya, who examined
torture victims for IMLU and the Kenya National Human Rights
Commission (KNCHR),both of which issued reports alleging
human rights abuses in Mt. Elgon (ref b). He is charged with
providing false information to a civil servant, which relates
to 26 medical case files he provided to KNCHR. (Note: KNHCR
has the status of a state entity, and its employees are civil
servants. KNCHR has issued a public statement defending Dr.
Nalianya, interpreting the KNCHR Act as providing immunity
for his cooperation. End Note). Two additional charges of
illegally operating a hospital without a license were thrown
out by the court. He is currently free on bail. The second
is Taiga Wanyanja, the director of a local Community Based
Organization (CBO) in Bungoma, near Mt. Elgon which has
documented torture in the Mt. Elgon region since the conflict
erupted in 2006. Wanyanja was a key local contact for HRW in
compiling its reports. Wanyanja is being charged with
disorderly conduct in front of the Bungoma police station.
(Note: Post is working with DRL's Human Rights Defenders Fund
to provide financial assistance for Wanyanja's legal defense.
Some EU embassies have contributed funds for the defense of
Dr. Nalianya. End Note.) The government is also trying to
de-register Wanyanja's CBO, arguing that its base is in
Bungoma, so it has no authority to operate in the neighboring
Mt. Elgon district.


10. (U) Medicins Sans Frontieres-Belgium (MSF-B) published a
report in mid-June detailing a large increase in the number
of people it treated for torture-related injuries after the
onset of the security operation. The report also noted that
MSF-B had treated many victims of SLDF torture. On June 26,
police established a roadblock just outside MSF-B's base in
the district and prevented operation of its mobile clinic and
services to IDPs. After multiple intercessions by the U.S.
Ambassador on MSF's behalf, the Ministry of Internal Security
restored MSF's access to the lower regions of Mt. Elgon in
mid-August.

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Parliamentary Committees Visit Mt. Elgon

NAIROBI 00002253 004 OF 005


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11. (C) In mid-August, a joint delegation of the
Parliamentary Committee for Defense and Foreign Relations and
the Committee for Administration, National Security and Local
Authorities visited the Mt. Elgon on a fact-finding mission.
Adan Keynan, Chair of the Committee for Defense and Foreign
Relations, led the delegation. (Note: The Chair of the other
committee, Fred Kapondi, who represents Mt. Elgon in
Parliament, was part of the delegation, but took a back seat
due to allegations that he is the political leader and
financier of the SLDF. End Note.)


12. (C) Keynan told Poloff on August 28 that he embarked on
the trip with an open mind, but is now convinced that both
the police and members of the armed forces committed human
rights abuses. This, he said, raises a serious problem about
what to do next. While he expressed no surprise that the
police behaved unprofessionally, calling the army out on bad
behavior is a much more sensitive issue. The committees are
now faced with a dilemma of how to encourage the Army to
change its behavior without hanging them out to dry, he said.
"If the NGOs (accusing the military of abuses) had their
way, there would be no army left, which is not in Kenya's
national interest," Keynan said.


13. (C) While the opinions of the MPs who went on the trip
are diverse and their fact-finding report is still in the
draft stage, Keynan believes that the prudent way forward
will be to include the names of some military officials who
are credibly believed to have been responsible for human
rights abuses and recommend them for courts-martial or other
legal action. Keynan was unequivocally pessimistic about the
prospects of holding the police accountable for their
actions, but the army is a different matter. "At least they
have a reputation to uphold," he said. (Note: Unlike the
police, Kenya's military enjoys a good reputation that
extends internationally due to their frequent deployments for
UN peacekeeping operations. Local human rights organizations
have told us that this is the first time they have ever
documented abuses by members of the military against
civilians. End Note.) Keynan told Poloff on September 22
that he remains willing to discuss the report's conclusions
with us when they are ready, which is expected to be around
October 6. While the conclusions of the report may be subject
to changing political winds, implementation of
recommendations for punishment would be a significant step
towards accountability by the GOK.

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COMMENT
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14. (C) In responding to allegations of abuses in Mt. Elgon,
the government has undermined its own credibility by denying
all allegations and attacking those who criticize the
government's actions. We continue to push the government on
the need for a meaningful investigation and response to the
allegations. The Ambassador discussed the need for an
impartial, transparent investigation into allegations of
human rights abuses with President Kibaki on August 27 and
with Prime Minister Raila Odinga on September 1.
Additionally, the Defense Attache and KUSLO continue to
engage the Ministry of Defense on the same message.
Internally, we continue to ensure that we are in compliance
with Leahy vetting requirements and are taking the additional
measure of insuring that no individual military or police
personnel involved in the Mt. Elgon operation is trained by
the U.S. until the government undertakes a credible effort to
hold individuals accountable for human rights violations.
If, as hinted by Adan Keynan, the report of the parliamentary
joint delegation visit calls for punitive measures against
individual perpetrators of human rights abuses, we will use
our good offices to push for implementation of the report's
conclusions. However, even with a parliamentary report that
names names, the culture of impunity in Kenya remains strong.

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RANNEBERGER