S/WCI RAPP'S VISIT PUSHES ACCOUNTABILITY ISSUE

C O N F I D E N T I A L NAIROBI 002405 SIPDIS E.O. 12958: DECL: 05/07/2019 TAGS: PREL KE US SUBJECT: S/WCI RAPP'S VISIT PUSHES ACCOUNTABILITY ISSUE Classified By: Ambassador Michael Ranneberger, reasons 1.4 b,d ¶1. (C) Summary. Ambassador Rapp's November 5-6 visit highlighted in a timely way the importance the U.S. attaches to accountability for post-election violence, as part of the broader reform agenda. Amb Rapp stressed the need for Kenyan authorities to cooperate to apprehend Rwandan fugitive Kabuga. End summary. ¶2. (C) During his November 5-6 visit, Ambassador-at-Large for War Crimes Issues Stephen Rapp met with Prime Minister Odinga and other key ministers, and with civil society, and held a press conference. Amb Rapp's visit reinforced USG efforts to press for implementation of the reform agenda by highlighting the importance we attach to ensuring accountability for post-election violence. Amb Rapp also emphasized U.S. concerns about the likely presence of Rwandan fugitive Kabuga in Kenya. -------------- Discussions on Accountability and Kabuga -------------- ¶3. (C) Amb Rapp used his meetings with Kenyan officials to underscore the importance we attach to ensuring accountability for post-election violence and to press for Kenyan cooperation to apprehend Rwandan fugitive Kabuga. Amb Rapp offered the example of Sierra Leone, where the national government and international organizations have worked together to try those responsible for atrocities during that nation's civil war. He noted that International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo is in the process of opening an investigation into Kenya's post election violence and that it is vital that he receive the Government of Kenya's full support. Prosecutor Ocampo, Amb Rapp said, has made it clear that once the ICC begins its proceedings they will continue to their conclusion unless the Kenyan government takes concrete steps to bring to justice those responsible for the violence. Prime Minister Odinga, who was accompanied by Minister of Justice Mutula Kilonzo, went over familiar ground, maintaining that he and President Kibaki had unsuccessfully tried to persuade Parliament to set up a local Special Tribunal. Odinga and Kilonzo both, however, stated that the Kenyan government will cooperate with investigations and prosecutions by the ICC. ¶4. (C) Minister Kilonzo then noted his concerns regarding protection of witnesses in any investigation of Kenyan political violence. He stated that he believes beginning an ICC investigation will raise the expectations of the Kenyan people, but fears the passage of time will make it increasingly difficult to obtain adequate evidence and witness testimony. However, he is afraid for those who step forward as witnesses. He noted that any criminal prosecution is only as good as the evidence available. Cases against those responsible for political violence will not succeed if witnesses can be intimidated or killed. He requested that the U.S. provide assistance in establishing an effective witness protection program. (Note: The U.S. provided technical assistance to Kenyan authorities to establish a witness protection program, but the program has been placed under the highly corrupt Attorney General, and is thus not yet credible. Kilonzo knows the program is not credible and is himself part of the system of impunity, and was thus trying to cover himself in the comments made to Amb Rapp). Amb Rapp again stressed that active Kenyan cooperation with the ICC investigation is vital. The ICC needs useable evidence and credible witnesses, and relies on state cooperation to obtain them. He agreed that an effective witness protection program is vital. He also noted that, as part of his investigation, ICC Prosecutor Ocampo may issue a public summons for those under investigation to appear before the ICC to answer questions. ¶5. (C) Ambassador Rapp stated firmly that the level of Kenyan cooperation in the Kabuga case has been inadequate. Credible information indicates that Kabuga is still in Kenya. Neither the USG nor the International Criminal Tribunal for Rwanda has received concrete evidence that he has left the country, as Kenyan authorities allege. The Prime Minister noted that the Kabuga issue is an old story that began under the administration of former President Moi. He said he is aware of reports that powerful people within the Kenyan government had protected Kabuga and provided him refuge in Kenya. However, despite many reported sightings of Kabuga he has not been found. PM Odinga observed that after Moi had left office the government continued to be accused of complicity in sheltering Kabuga. However, he claimed the government has no reason to protect Kabuga, particularly with the U.S. offering a $5 million reward for his capture. The Prime Minister then stated that the Kenyan National Security Council has determined that Kabuga has left the country, referring to an intelligence assessment that he said concluded Kabuga is not in Kenya. However, he did not offer any concrete evidence to show when Kabuga had departed Kenya or to where nor did he provide a copy of the assessment. Amb Rapp reiterated that the search for Kabuga is still vital. Amb Rapp noted that, if Kabuga has indeed left Kenya, ICTR Prosecutor Jallow and his team of investigators will need to know where he went. He emphasized that if the Kenyan government is to convince the U.S. and the ICTR that Kabuga has left the country they must provide concrete evidence of his departure and information on his destination. (During his visit, Amb Rapp also met with diplomats representing the Friends of the International Criminal Tribunal for Rwanda.) ¶6. (C) As pre-arranged with Ambassador Ranneberger, Amb Rapp raised strong U.S. interest in wanting to see movement on key reform agenda issues. Amb Rapp specifically raised the Truth, Justice, and Reconciliation Commission. Minister Kilonzo replied that the process of forming a TJRC is underway. The Kenyan government is also in the process of reforming the police, and there are judicial reform proposals before the cabinet. Minister Kilonzo claimed that, except for the failure to establish a tribunal to deal with the post-election violence, the Kenyan government is doing a good job in administering justice. He further stated that there is no time limit to bring to justice those responsible for the post election crimes. He also noted that, in his opinion, the new constitution is of prime importance. He insisted that, once the constitution has been approved and ratified, the government will be better able to investigate the post-election violence. Amb Rapp observed that Amb Ranneberger and Assistant Secretary for African Affairs Johnnie Carson have repeatedly emphasized the importance of fundamental political reforms in Kenya. A unifying constitution is critical to this effort. He repeated that there must be accountability for those who have instigated political violence in order to prevent worse atrocities in the future. ¶7. (C) Minister Orengo (who is Minister of Lands but also a constitutional lawyer and PM Odinga's point person on the ICC issues) noted that the cabinet is split regarding how much they should cooperate with the ICC, as are the political parties. He said that Kenya has not yet come to terms with the past and its authoritarian history. However, he said that international pressure is helping to encourage progress. There is little likelihood of establishing an effective local tribunal. He stated that if the ICC is able initiate prosecutions by the second half of 2010 that might improve the atmosphere for passing a local tribunal law. However, he also admitted that ordinary Kenyans generally have little confidence that a local tribunal can bring the perpetrators to justice. Orengo stated that a critical person in the Kenyan government is Minister of the Interior and Provincial Administration George Saitoti. Previously seen as a hardliner, Minister Orengo observed, Saitoti now appears to be much more flexible. His support and cooperation would make it much easier to proceed with an ICC case. ¶8. (C) Amb Rapp and Orengo also discussed the broader reform agenda. Orengo concluded by stating that the U.S. should not apologize for pressuring the Kenyan government to reform. He stated that, even with a multi-party political system, the tradition of impunity still requires outside pressure in order to achieve positive change. He noted that U.S. support for reform gave courage to the people in the run up to multi-party elections in 2002. -------------- Civil Society -------------- ¶9. (C) Amb Rapp met with representatives of civil society, including Florence Jaoko, Kenyan National Human Rights Commission; Tom Kagwa, Kenyan Human Rights Commission; Evans Monari, Law Society of Kenya; Simiyu Werunga, the East African Institute of Security Studies; Ndungo Wanaina, International Centre for Peace and Conflict; and Harun Ndubi, Kenyan Truth and Justice. They all stressed the urgent need for reform in the Kenyan political system. They agreed on basic points regarding the effort to bring to justice the perpetrators of the post election violence; 1) prosecution of these cases must occur in a timely fashion and 2) prosecutions must be balanced; all sides of the political spectrum committed violence thus all sides must be included in the prosecutions. They also emphasized the need for witness protection. -------------- Media -------------- ¶10. (U) Amb Rapp addressed a press conference which included broad local and international media representation. He stressed the importance of accountability, emphasized U.S. insistence that the reform agenda be implemented, and urged Kenya to cooperate with the ICC. -------------- Comment -------------- ¶11. (C) Amb Rapp's visit served to highlight to Kenyan officials and the public continued high-level USG focus on implementation of the reform agenda. End comment. ¶12. (U) Ambassador Rapp did not review this cable before departing Nairobi. RANNEBERGER