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.

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Discussions on Accountability and Kabuga
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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.

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Civil Society
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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.

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Media
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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.

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Comment
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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