KENYA: AMID CONTROVERSY KIBAKI REAPPOINTS

C O N F I D E N T I A L NAIROBI 001859


DEPT FOR AF/E AND AF/EPS
STATE PASS USAID/EA

E.O. 12958: DECL: 09/03/2018
TAGS: KCOR ECON PGOV PREL KE
SUBJECT: KENYA: AMID CONTROVERSY KIBAKI REAPPOINTS
CORRUPTION CZAR RINGERA

Classified By: AMBASSADOR RANNEBERGER FOR REASONS 1.5 (b)(d)


1. (C) On August 31, President Kibaki appointed Justice
Aaron Ringera to a second five-year term as Director of the
Kenyan Anti-Corruption Commission (KACC). The immediate
response from the KACC Advisory Board, reformist elements,
Parliament, civil society, and ordinary Kenyans was strongly
negative due to Ringera's failure over the past five years to
bring any charges against senior government officials, and
the unilateral--possibly illegal--manner of his
reappointment. Despite statements to the contrary by the
Minister of Justice and the Vice President, the process does
appear to be illegal and, at a minimum, is a direct slap in
the face to those calling for action on accountability and
steps against corruption as part of the reform agenda.
Embassy has issued a statement condemning the unilateral
nature of the reappointment (para 10). The Minister of
Justice (who orchestrated the reappointment) reacted strongly
to our statement, and the Foreign Minister called the
Ambassador to protest it. The statement has been welcomed by
civil society, pro-reform elements in the government,
pro-reform MPs, and ordinary Kenyans. Reformists in
Parliament and civil society are insisting that the
reappointment be reviewed. The Speaker of the Parliament has
presided over debate on Ringera's reappointment, and two
committees are examining the legality of the reappointment
process. We have offered research and analytical support for
this endeavor through USAID's Parliamentary Strengthening
program. The fact that the reappointment was made despite
Ringera's total lack of credibility and without transparency
or consultation calls into serious question the government's
political will to fight corruption and to implement the
broader reform agenda. End Summary


2. (C) On August 31, President Mwai Kibaki appointed Justice
Aaron Ringera to a second five-year term beginning September
8 as Director of the Kenyan Anti-Corruption Commission
(KACC). Kibaki's decision to reappoint Ringera came amidst
controversy as both civil society groups and reformist MPs
have long been calling for a fresh face at the KACC. The
KACC Advisory Board was expecting to review candidates to
replace Ringera at a meeting on September 2. Kibaki moved to
pre-empt the board, whose statute mandates that it "recommend
to Parliament persons to be appointed as Director or
Assistant Directors," which after Parliamentary vetting the
President then appoints. The Board has subsequently
indicated in writing that the reappointment of Ringera and
two others was illegal. They have accepted that Ringera
should remain in office but only until a new appointment is
made.


3. (C) Sources indicate that the reappointment was planned by
Minister for Justice Mutula Kilonzo, Ringera, and Head of
Civil Service Francis Muthaura. The President was reportedly
pressured to reappoint Ringera because the alternative, Ahmed
Nasir Abdullahi (a respected former chair of the Law Society
of Kenya),was considered by Kilonzo and Muthaura to be a
threat to cabinet ministers and members of the President's
family who are allegedly involved in corruption. Kibaki
reportedly asked them if there would be any blow back and
they said no. They were badly mistaken.


4. (C) The Prime Minister confirmed to the Ambassador that he
was not consulted. The Prime Minister said that when he
complained to President Kibaki about the absence of
consultation, Kibaki "dug in his heels." A number of other
ministers have privately expressed dismay at the
reappointment.


5. (SBU) Kenyan civil society has expressed outrage over
Ringera's reappointment. Collectively, civil society had
been calling for some time for Ringera not to be appointed
for a second term. In the aftermath of President Kibaki's
announcement, they have called on him to revoke the
appointment. Transparency International's Director Job
Ogonda summarized civil society views:

"Public service legitimacy depends on the faithfulness of
public service to the aspirations of the citizens. The track
record of KACC is testimony of betrayal of this principle. No
politically significant corruption case has been successfully
investigated by KACC. While the reasons for this dismal
performance lies with the President, cabinet, judiciary,
Attorney General's office and Parliament, the buck stops with
the head of the anti-corruption oversight institution. He
should have recognized the structural and policy weaknesses
that were going to lead to this failure, and resigned. Or
fought for fundamental reforms in a way that was both visible
and credible. This appointment underlines the government's
lack of commitment to accountability."


6. (SBU) Many members of Parliament are reacting very
negatively, claiming the reappointment is illegal and must be
reviewed. As a protest, Parliamentarians refused to allow
Parliament to adjourn for six weeks as had been planned,
extending the session to debate this issue. During
vociferous debates, MPs are speaking out on the government's
attempts to circumvent the law. They are also pointing out
that, with no major convictions in the past five years,
Ringera is not competent to continue for another term.
Parliamentarians attempted to strip KACC funding from an
appropriations bill yesterday (which would in effect dissolve
the body),but Finance Minister Uhuru Kenyatta withdrew the
bill before the amendment could be introduced.


7. (C) The Speaker of the Parliament has presided over
debate on Ringera's reappointment, and two committees are
examining the legality of the reappointment process. We are
mobilizing support for these committees, offering research
and analytical support for this endeavor through USAID's
Parliamentary Strengthening program. Of particular concern
to the committees is the question of why the government very
recently closely adhered to the prescribed appointment
guidelines (i.e., Advisory Board nominates, Parliament
approves, President appoints) with regards to two Deputy
Commissioners but then chose to circumvent the process with
Ringera. The Speaker has told the Ambassador that he
considers the appointment illegal.


8. (SBU) Ringera's reappointment has dominated print, radio
and television news, and the Embassy statement (para 11)
received wide media coverage. Simultaneously with the
release of the September 3 statement, the Ambassador was
interviewed on several radio stations. Later in the day,
KTN's popular TV program, "Diplomatic Perspectives," with its
influential anchor, Beatrice Marshall, hosted the Ambassador.
An informal TV call-in poll done by two TV stations showed
68 percent welcoming the U.S. statement and support for
reforms. The September 4 editions of the print media gave a
straight-forward account of the unfolding events surrounding
the Ringera reappointment.

Comment


9. (C) After five years in office, the record of Justice
Ringera is clear: no recommendations for prosecution and zero
convictions of any high-level government official, despite
pervasive corruption scandals in which senior officials are
implicated. Instead of fighting for convictions -- or
resigning because of the KACC's inability to overcome the
government forces aligned against the organization's
implementation of its mandate, if that is the case -- Ringera
is part of the shell game organized within the GOK to prevent
accountability for corruption. The fact that the
reappointment was made despite Ringera's total lack of
credibility and without transparency or consultation calls
into serious question the government's political will to
fight corruption and to implement the broader reform agenda.
End Comment.

Embassy Statement - September 3


10. (U) In response to requests from civil society and
reformist MPs, we issued a strong statement. Foreign
Minister Wetangula called the Ambassador to protest the
statement.

Begin Text:

The United States Government is deeply concerned about the
unilateral reappointment of Justice Aaron Ringera as Director
of the Kenya Anti-Corruption Commission (KACC). The
reappointment, and the manner in which it was done, raise
profoundly troubling questions, particularly given the poor
record of performance of the KACC over the past five years.
Serious questions regarding the poor performance of the KACC
have been consistently and strongly raised by civil society,
stakeholders, Members of Parliament, and others. The very
negative public reaction to the reappointment shows how
little confidence the Kenyan people have in the KACC.

We are concerned that the reappointment was apparently made
without proper consultation. The KACC Advisory Board has the
responsibility to make recommendations for candidates for
Director and Assistant Directors to the Parliament, which
vets and approves those candidates, and sends the names of
approved candidates to the President for him to appoint.
While not strictly required, it would also have been
appropriate - and a sign of good faith to fight corruption -
to consult broadly with civil society. Lack of consultation
and transparency call into serious question the government's
commitment to end the culture of impunity through decisive
steps to fight corruption and to implement key reforms.

We urge that Justice Ringera's reappointment be re-examined
in accordance with appropriate procedures and through a
process of broad consultation. The United States will
continue to support the insistence of the Kenyan people that
fundamental reforms be fully implemented, as agreed in the
National Accord of 2008.

End Text.


RANNEBERGER