KENYAN RESPONSE TO DEMARCHE ON PIRACY

UNCLAS SECTION 01 OF 02 NAIROBI 001245 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: EWWT MARR PGOV PHSA PHUM PREL KE SUBJECT: KENYAN RESPONSE TO DEMARCHE ON PIRACY REF: A. STATE 59021 ¶B. STATE 58579 ¶1. (U) This is an action message; request at para 4. ¶2. (U) The Deputy Chief of Mission delivered ref A and B talking points and nonpapers to Beatrice Karago, Principal State Counsel for the Ministry of Foreign Affairs and the Government's primary point of contact on piracy issues, on June 19. ¶3. (U) Karago thanked the DCM for ongoing U.S. support to the Director of Public Prosecutions and said that she particularly appreciated U.S. efforts to pressure other countries with a stake in combating piracy to shoulder more of the burden. Karago said that when it comes to piracy, countries with a national interest at stake should take action and not leave it to a third party. Kenya is a developing country that has its own backlog of legal cases and overcrowded, sub-standard prisons. Kenya is now using its own scarce resources to prosecute piracy suspects who are rightly the responsibility of other countries, she said. To make matters worse, the assistance that Kenya is currently receiving from the European Union to support the added burden (through the UN Office on Drugs and Crime) has not been very useful to date. Every time the Kenyans bring up their need for capital expenditures to build their institutional capacity, the EU and UN counter with offers to supply consultants, which the Kenyans do not need, she said. ¶4. (U) Karago acknowledged the already considerable technical and material assistance being provided by the United States to build the capacity of the Director of Public Prosecutions and the police. That said, she stressed that Kenya's most critical need is improvement in their prison facilities. Built for a capacity of 16,000 prisoners, Kenya's prisons now hold 52,000, she said. DCM took the request and promised to relay it to Washington for consideration. ¶5. (U) Karago agreed that an international piracy court is not an answer to the piracy problem (ref B). First of all, it would not be needed if stakeholder countries would step up to their responsibilities. More practically, many believe that the case throughput would not be sufficient to justify the high cost of creating such a court, she said. Karago said there were a couple of options that were viable given the current situation (i.e., stakeholder countries are not stepping up and Kenya is unfairly shouldering the burden). First, it would be easier to develop a strategy to increase stakeholder participation if there was open and frank discussion about the reasons countries do not want to accept piracy suspects. Are there legislative limitations that could be addressed, for example? Resource limitations? Karago suggested that some countries may be willing to accept convicted prisoners to serve out their sentences in their own, vice Kenyan, prisons. Other common law countries could benefit by training from Kenyan lawyers to support their own prosecutions, she said. Still others would need to change their legislation to be able to prosecute pirates, a lengthy process, Karago admitted. ¶6. (U) The second option Karago discussed would be a formal recognition of the burden that Kenya is taking on behalf of the international community and a conscious decision to create a hybrid court, like the Special Court for Sierra Leone. (Note: The hybrid system would be similar in that the international community would invest in sorely-needed infrastructure improvement in Kenya to specifically deal with the piracy problem. Like in Sierra Leone, the infrastructure ultimately would be turned over to the Government of Kenya. End Note.) Karago said that such an approach would be win-win for the international community and Kenya. ¶7. (U) When asked whether any other countries were pursuing Memoranda of Understanding with Kenya for accepting pirates, Karago said that Kenya is negotiating with the governments of Canada, Denmark, and Turkey. (Note: Because Denmark opted out of the European Union Defense Council, Denmark is not covered under the existing Memorandum with the European Union, she said. End Note.) Karago added that she recently spoke with a NATO representative who asked about Kenya's potential reaction to a similar request from NATO, but Kurago said that such a request would have to be clarified because of the obvious potential for overlap with separate agreements with NATO member states. NAIROBI 00001245 002 OF 002 ¶8. (SBU) Comment: Karago hinted at but did not articulate a third option, which we will flesh out here because it could add teeth to our efforts to increase stakeholder participation: the primary stakeholders in this issue are not necessarily the countries who flag, own, or crew the merchant ships -- they are the shipping companies themselves. If these stakeholders refuse to re-assess their obligations to combat piracy -- either by re-routing ships, increasing security measures, or, in the case of insurance companies, re-assessing claim payment policies in cases of ransoms paid, it is up to us and our coalition partners engaged in anti-piracy patrols to re-assess our presence and our parameters for interdiction. The current glut of piracy cases -- which is increasingly trying the patience of the Kenyans and tying up valuable U.S. and Kenyan resources -- is to some degree self-generated and, from our perspective, has had no noticeable deterrent effect on the larger problem to date. If our efforts to increase stakeholder participation or provide more infrastructure support to Kenya's inadequate penal system are not successful, Kenya's continued cooperation is not guaranteed. End Comment. RANNEBERGER