US embassy cable - 05NAIROBI2424

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 002424 
 
SIPDIS 
 
E.O. 12958: DECL: 06/10/2030 
TAGS: PTER, PGOV, KISL, KDEM, PINS, ASEC 
SUBJECT: TERRORISM TRIALS: GOK - "WE AGONIZE, BUT ARE 
LIMITED IN OUR PUBLIC RESPONSE" 
 
REF: A) NAIROBI 2409 
 
Classified By: Charge d'Affaires a.i. Leslie V. Rowe. Reasons 1.4 (b,d) 
 
 1. (C) SUMMARY. The Acting Foreign Minister has expressed 
surprise and disappointment at the June 9 court decision to 
release four major terrorism suspects, but admits there is 
little that can be done publicly to mitigate the damage. The 
Kenyan Government is hesitant to file an appeal and remains 
pessimistic about the June 21 outcome in the related 
conspiracy trial. It is nonetheless committed to the 
development of a stronger case against the sole suspect 
re-arrested June 9 on additional charges and to the long-term 
surveillance of the three released suspects. There is growing 
realization within the Government that the lack of 
coordination and cooperation between police and prosecutors 
during the investigation phase ultimately undermined the 
state's case. Leads developed by the USG-funded GOK Joint 
Terrorism Task Force, which made possible the re-arrest of 
one of the defendants, have underscored the importance and 
benefits of inter-ministerial cooperation. Upon learning that 
Task Force activities were recently suspended by the Police 
Commissioner, the Acting Foreign Affairs Minister pledged to 
push his cabinet colleagues to stop warring factions and 
police intransigence from undermining a critical 
counter-terrorism tool. END SUMMARY. 
 
2. (C) Charge met with Acting Foreign Affairs Minister Moses 
Wetangula June 10 to express the USG's dismay over the June 9 
court decision releasing, on the basis of insufficient 
prosecutorial evidence, four suspects in the 2002 Kikambala 
terrorist attacks, thus ending the twenty-seven month murder 
trial. (Ref A.)  (NOTE: The four suspects were Omar Said 
Omar, Aboud Rogo, Mohammed Seif Kubwa and Ali Saleh Nabhan. 
END NOTE.) While noting USG satisfaction with the re-arrest 
of Omar Said Omar on additional charges a few hours after the 
June 9 ruling, Charge emphasized that neither the U.S. 
government nor the Kenyan government had any doubt about the 
four's involvement in the attacks.  Charge underscored 
ongoing U.S. concerns about Aboud Rogo, Mohammed Seif Kubwa 
and Ali Saleh Nabhan's release, particularly in light of the 
Embassy's own past history with terrorism in Kenya. 
 
3. (C) The one bright spot in this latest counter-terrorism 
setback, she noted, was Post's close working relationship 
with the minstries of Justice, Internal Security, the 
Department of Public Prosecutions (DPP) and the Kenya Police 
Service (KPS). Follow-on investigations to the Kikamabala 
attacks had been initiated by these entities grouped within 
the USG-funded GOK Joint Terrorism Task Force. Given the Task 
Force's key role in the re-arrest of Omar Said Omar, the 
recent breakdown in relations between KPS and DPP in the Task 
Force was discouraging. Charge urged Wetangula to speak with 
his colleagues in the Internal Security Ministry (which 
oversees KPS) and the Ministry of Justice and Attorney 
General's Office (which oversee DPP) to continue to support 
the concept and functionality of the Task Force. 
 
4. (C) Wetangula emphasized that Kenya shared America's 
disappointment with the ruling, noting his personal surprise 
and distress over the decision. He speculated that the 
judgment likely stemmed from "structural weaknesses" in the 
prosecution, but argued against holding the entire judiciary 
responsible for flaws in the presentation of evidence. He 
stressed the government's collective agony over the decision, 
but argued future public actions are constrained by the 
judiciary. Although the Attorney General will explore the 
possibility of an appeal, Wetangula -- an attorney by 
training -- was pessimistic on the subject, and similarly 
skeptical on the outcome of the June 21 conspiracy trial. 
 
5. (C) Wetangula agreed with the Charge's assessment of Rogo, 
Kubwa and Nabhan's guilt, stressing that this "fact" was the 
driving force behind the decision to subject the three to 
monitoring and surveillance "for as long as it takes." When 
queried about the sustainability of such surveillance, 
Wetangula responded that "characters like this are capable of 
doing it again, therefore we will be on our toes throughout." 
(COMMENT: Post has reservations about the efficacy and 
feasibility of immediate, long-term surveillance. COMMENT.) 
 
6. (C) With little prodding, Wetangula acknowledged that the 
Kenyans' lack of progress on this and the related June 21 
conspiracy case were linked to legal loopholes easily 
redressed through the passage of legislation such as the 
Suppression of Terrorism Act. Parliament's House Business 
Committee had been discussing "fast-tracking" the 
legislation, and come October it could be tabled before 
Parliament. The Charge questioned this assessment, noting few 
MPs considered such legislation a priority, particularly 
given the vocal concerns of civil society. Moreover, she 
stressed, the already tabled Evidence Act (Amended) presents 
the Kenyan government with sound methods through which to 
prosecute future terrorist cases.  Why not concentrate 
efforts on securing its passage through Parliament? Acting 
FonMin replied that he had "no doubt that the Act would pass" 
before Parliament's summer recess. (NOTE: MPs frequently 
report to EmbOffs that the Evidence Act's chances of passage, 
at least before the December rise of the house, are quite 
strong. END NOTE.) 
 
7. (C) The Acting FonMin expressed genuine surprise at the 
news of the Task Force's suspension, and committed himself to 
exploring how he and his cabinet colleagues could get the 
initiative back on track. Wetangula was well-versed on the 
Task Force, DPP's contributions thus far, and on plans to 
make the former Law School building the future site where 
police and prosecutors working on counter-terrorism issues 
and in the Task Force would be co-located. He maintained that 
the Kenyan Government was not relaxing on the issue of 
terrorism and crime generally, and that, with respect to the 
Task Force, this was a shared commitment from which the his 
government would not withdraw. He urged the Charge against 
"linking critical issues such as fighting terrorism and crime 
to anything else." 
 
8. (C) COMMENT: The meeting with Wetangula was upbeat, 
despite his despondence over the lack of options open to the 
GOK at this stage.  Wetangula appeared well-apprised of the 
task in front of the GOK, and confident of the measures in 
place to tackle the challenge.  With many of the Kenyan 
government's heavy hitters in the CT arena out of the 
country, Wetangula did his best to underscore the GOK's focus 
on the issue. END COMMENT 
ROWE