KENYA THREATENS END TO PIRACY PROSECUTIONS

UNCLAS SECTION 01 OF 02 NAIROBI 002016

SENSITIVE

DEPT FOR AF/E Driano, AND S/CT
AF/RSA FOR BITTRICK AND BANDO
INL FOR SILENSKY
DOJ/OPDAT FOR ALEXANDRE, BERMAN, SILVERWOOD
DOJ FOR CRIM, DAAG, SWARTZ

SIPDIS

E.O.12958: N/A
TAGS: KCRM KJUS PHSA KCOR PGOV KE IT

SUBJECT: KENYA THREATENS END TO PIRACY PROSECUTIONS


1. (SBU) Summary: On September 12, the Kenya Attorney General (AG),
Amos Wako, presented opening remarks at the Kenya prosecutors'
convention in Mombasa, and touted the Department of Public
Prosecutions' (DPP) progress under his leadership. He listed a
dozen specialized units that had been formed within the DPP and
relevant criminal justice legislation that had been enacted or had
been recently drafted. When noting a number of these
accomplishments, he acknowledged the support that was provided by
the U.S. government. Also, he stated that the DPP was now the
"leading [piracy] prosecution agency in the world," but that Kenya's
willingness to prosecute these cases is being "taken for granted."
He stated that the international community needs to provide Kenya
with more assistance, "otherwise, we will say 'enough is enough.'"


2. (U) The AG's remarks were later echoed by the Director of Public
Prosecutions (DPP),Keriako Tobiko, in private conversations. The
DPP expressed annoyance at the international community's
unwillingness to prosecute Somali pirates in their own countries,
and at the proposals to develop counter-piracy centers in regional
states other than Kenya. He also said that proposals for an
international piracy tribunal, however formulated, were "fantasies."
The AG also announced a three-year plan to phase out police
prosecutors. There are over 300 police prosecutors and they now
prosecute over 90 percent of criminal cases. There are 73 trained
lawyers in the DPP's office. The plan would require current police
prosecutors to undergo training and approval by the AG to become lay
prosecutors who would work under the direct supervision of the DPP.
Over time, increased employment of attorneys within the DPP would
lead to a reduction in the number of lay prosecutors. End summary.

--------------
AG TOUTS PROGRESS AND CRITICIZES DONORS
--------------


3. (SBU) On the opening day of the Department of Public
Prosecutions' (DPP) First Annual Convention, Attorney General Amos
Wako spoke for three hours extolling the progress of the DPP, while
criticizing the international community for constantly "talking
about law reform, law reform," and for not giving enough credit and
support for Kenya's piracy prosecution efforts. The AG noted that,
in the last few years, the DPP had established approximately a dozen
substantive units, including, anticorruption, economic crimes and
asset forfeiture; narcotics and money laundering; general crimes;
extradition and mutual legal assistance; constitutional and judicial
review; sexual offenses and victims' rights; and counter-piracy.
(Comment: Most of these units exist in name only. Senior
prosecutors are assigned to multiple units, but they do not
necessarily undertake substantive work in those areas. A dozen
prosecutors have been "assigned" to the counter-piracy unit, for
example. Until recently, only three prosecutors have been actively
involved in any of the piracy cases. End Comment)


4. (SBU) The AG also heralded his Department's involvement in the
drafting and enactment of legislation relating to sexual offenses,
plea bargaining, and witness protection, as well as their current
role writing proposed legislation on anti-money laundering, mutual
legal assistance, counterterrorism, organized crime, and the
international transfer of prisoners. He listed ten training
conferences that had taken place over the last year, including those
relating to trial advocacy, witness protection, forensics, sexual
offenses, and the induction of new prosecutors. He thanked the U.S.
government for its assistance with the legislative drafting and
training programs.


5. (SBU) The AG announced plans for the police prosecutors to be
phased out and replaced over time with lawyers employed in the DPP.
The plan calls for the AG to establish two categories of criminal
offenses: minor offenses (misdemeanors) that could be charged by
police, but the charges would have to be reviewed and approved by
the DPP's office within 14 days; and major offenses (felonies) that
could only be brought by the DPP's office. Existing police
prosecutors would have to undergo additional training, be vetted and
officially gazetted by the AG before they would join the ranks of
"lay prosecutors" overseen by the DPP. Meanwhile, more lawyers
would be hired by the DPP.


6. (SBU) In his public remarks, the Director of Public
Prosecutions, Keriako Tobiko, also thanked the US Department of
Justice and the U.N. Office on Drugs and Crime (UNODC) for their
continued support. He asked the USDOJ Resident Legal Advisor (RLA)

NAIROBI 00002016 002 OF 002


to help his office develop several training programs, including
country-wide seminars for prosecutors and judges on plea agreements,
and a program to address sentencing reform. (Note: The RLA's office
provided support for the DPP's three-day conference, and the RLA and
the USDOJ/International Criminal Investigative Training Assistance
Programme (ICITAP) Senior Law Enforcement Advisor were present to
teach portions of the program. There were approximately 100
participants, including representatives from the police prosecutors,
the Kenya Anti-Corruption Commission (KACC),and the Kenya Revenue
Authority (KRA). The KRA was recently granted prosecutorial powers
by the AG. The AG has never extended these same powers to the KACC.
End Note)


7. (SBU) In private, the DPP expressed his office's irritation with
the pace and amount of support provided by UNODC for piracy
prosecutions. He noted that those European countries who had
delivered pirate suspects to Kenya were unwilling to prosecute
pirates in their home countries. He raised the case of the Italian
capture where the suspected pirates were held by the Italian Navy on
board ship for several weeks, and were arraigned via teleconference
before an Italian judge, only later to be flown to Kenya after Italy
passed legislation to discharge itself of the responsibility to
prosecute this group of suspects. He was also dismayed about plans
by the international community to pay for "counter-piracy centers"
in neighboring states that have done much less than Kenya in the
fight against piracy. (Note: The president of the International
Maritime Organization (IMO) is Japanese, and the Japanese reportedly
have agreed to contribute several million dollars toward the IMO
establishing such a center in Djibouti, and possibly Yemen. End
Note)


8. (SBU) DPP Tobiko stated that an international criminal tribunal
for piracy was not workable or realistic. He said that such a
tribunal, wherever based or however constituted, was a "fantasy."
He referred to the checkered history of the other international
criminal tribunals. He concurred with the view that donor money was
better spent building the capacity of existing criminal justice
systems. He also stated that Tanzania was unlikely to pass
legislation to permit piracy prosecutions to proceed there, because
Tanzania did not see that Kenya was receiving any significant
benefit for its involvement. (Note: Although the DPP was dismissive
of the work done by UNODC over the last few months for the judiciary
and prisons on the Kenyan coast, representatives from those
organizations are more complimentary of UNODC's assistance. End
Note)

--------------
Comment
--------------


9. (SBU) Although both the AG and the DPP publicly expressed
appreciation for U.S. support, there was a new stiffness in their
private posture toward the RLA and Embassy representatives. In
part, their new posture can be attributed to their disenchantment
with the international community's general response to piracy and to
their perception that they are not getting a sufficient and liquid
share of the millions of dollars being spent by the international
community on counter-piracy efforts. However, their new attitude
likely is influenced more by our recent calls for the AG to be
removed from office.


10. (SBU) The international community's desire for Kenya to continue
to assume the primary role in piracy prosecutions comes at an
awkward time. Now, twenty months after the post-election violence,
the Kenya government's continued inertia, particularly its lack of
significant progress in improving the rule of law, has underscored
the need for certain GOK officials to be replaced. It is equally
apparent that their removal is unlikely to occur without the
application of international pressure. The long-term interests of
the Kenyan people likely would be served if the AG, who has held
that that position for more than 18 years, were replaced. Piracy
prosecution in the region might suffer in the short-term, however,
if the AG uses his discretion and refuses to accept more piracy
cases in order to punish the international community for its calls
for his removal. End Comment


RANNEBERGER