US embassy cable - 05NAIROBI2695

C O N F I D E N T I A L SECTION 01 OF 02 NAIROBI 002695 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: DECL: 06/30/2025 
TAGS: PREL, MASS, PINS, ECON, SOCI, SENV, PGOV, EAGR, KE, Article 98 
SUBJECT: KENYAN DEPUTY PARLIAMENT SPEAKER ON ARTICLE 98: 
FEELING UNAPPRECIATED 
 
REF: A) NAIROBI 1654 B) NAIROBI 2446 C) NAIROBI 2571 
 
Classified By: ACTING POL/C LISA PETERSON, REASONS 1.4 (B) AND (D) 
 
1. (C) SUMMARY.  Deputy Speaker of Parliament, David Musila, 
explained June 29 that the underlying reason for Kenyan 
opposition to an Article 98 agreement is that Kenya feels 
"unappreciated." In recognition for all the security 
assistance Kenya has provided to the U.S., Kenya should not 
be required to sign an Article 98 agreement and should 
receive a presidential exemption from ASPA and Nethercutt 
sanctions.  Musila also said that a Parliamentary motion 
urging Kenya not to sign the agreement would almost certainly 
pass.  He agreed, however, that including the word "censure" 
in the motion was inappropriate and strongly urged that the 
Embassy ask the Foreign Ministry to have the motion amended 
accordingly.  END SUMMARY. 
 
2. (C) Poloffs met June 29 with David Musila, who is both 
Deputy Speaker of Parliament and Chairman of the Liberal 
Democratic Party, to discuss Parliament's recent engagement 
on the Article 98 issue. On simmer for much of the last two 
years, the Article 98 opposition campaign was placed on the 
front burner after Kenya ratified the Rome Treaty on the 
International Criminal Court March 15.  At first, the 
opposition consisted of articles and opinion pieces by human 
rights activists led and orchestrated by the Kenya National 
Commission on Human Rights (ref A).  Parliamentary engagement 
in the issue began with an anti-Article 98 opinion piece by 
Musila, which first appeared in The Daily Nation May 16, then 
again, with only slight modifications, in The Standard June 
17 (ref B).  It gained impetus on June 17 when MP Paul Muite 
filed a motion in Parliament to "censure" the U.S. for 
withdrawing its signature from the Rome Treaty on the 
International Criminal Court and recommending that the Kenyan 
Government not succumb to U.S. pressure to sign an Article 98 
agreement (ref C). 
 
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WHY SUCH STRONG OPPOSITION? 
--------------------------- 
 
3. (C) Musila explained that the principal reason for 
opposition to an Article 98 agreement was that Kenya felt 
"unappreciated" by the U.S.  Kenya had been a strong ally of 
the U.S. since independence.  Kenya has cooperated with the 
U.S. on the Gulf War, counter-terrorism, joint U.S.-Kenyan 
military exercises, regional initiatives -- some unpopular -- 
in Somalia and Sudan, and the 1976 Entebbe rescue mission. 
(COMMENT: Entebbe was an Israeli mission, but, in Musila's 
mind or memory, it at least had U.S. fingerprints.  END 
COMMENT.) In return for this cooperation, Kenya should, 
according to Musila, receive a waiver of the Article 98 
requirement.  Why have Egypt, all EU countries, and some 
"more difficult" U.S. partners received a waiver while Kenya, 
with its many "sacrifices" in the name of cooperation with 
the U.S., has not? 
 
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THE MUITE MOTION 
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4. (C) Musila said that the Muite motion had been filed and 
accepted by the Speaker of Parliament, but had not yet been 
scheduled for debate.  Musila confirmed that Parliament had 
no official role in approving international agreements and 
that the motion would not be binding on the Government.  He 
predicted, however, that Parliament would approve the motion. 
 
5. (C) Poloff told Musila that, while we would not like to 
see the motion go forward at all, at the very least, the U.S. 
Government and the U.S. Congress would not take kindly to a 
motion of "censure." Musila agreed that any reference to 
"censure" in the motion would not be appropriate.  He 
explained that the Ministry of Foreign Affairs would be asked 
to comment on the motion on behalf of the Government.  Musila 
strongly recommended that we approach the Minister -- Chirau 
Ali Mwakwere -- to ask if he could get the motion amended to 
remove any such reference. 
 
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COMMENT 
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6. (C) Musila's opinion that opposition to Article 98 is the 
reaction of an aggrieved friend is partially correct. 
However, the influence of other countries, including 
erstwhile U.S. allies, is also important. Musila wrote his 
opinion pieces as the group leader, Kenya chapter, of 
Parliamentarians for Global Action (PGA), an organization of 
some 1300 elected members of 110 parliaments, including 
Canada and European Union countries.  PGA has taken a leading 
role in the establishment and promotion of the ICC and in 
opposition to bilateral non-surrender agreements.  The PGA 
has already had a hand in the decision by such countries as 
Ecuador, Uruguay, and Peru to reject an Article 98 agreement 
and is likely, as an organization or through its members, to 
be influencing the Kenyan opposition. 
 
7. (C) Post is not inclined to approach Minister Mwakwere on 
the Muite motion.  As such an approach would almost certainly 
be leaked, it would be spun by the opposition as just another 
example of U.S. "arm-twisting," or worse, attempting to 
influence an act of Parliament.  We will, however, continue 
our regular contacts with the Ministry to attempt to push 
ahead with an agreement.  END COMMENT. 
BELLAMY