US embassy cable - 05NAIROBI4462

C O N F I D E N T I A L NAIROBI 004462 
 
SIPDIS 
 
E.O. 12958: DECL: 10/24/2025 
TAGS: PREL, MASS, PINS, ECON, SOCI, PGOV, KE 
SUBJECT: ARTICLE 98 AND ATTORNEY GENERAL WAKO 
 
REF: A. NAIROBI 2695 
 
     B. NAIROBI 2446 
     C. NAIROBI 2347 
     D. NAIROBI 1173 
     E. NAIROBI 0650 
     F. NEW YORK 2428 
 
Classified By: William M. Bellamy, reasons 1.4 (b,d) 
 
1. (C)  Summary:  Despite intensive Embassy lobbying over the 
past year (reftel A-E), and the cutoff of FMF, IMET and some 
ESF funding pursuant to the ASPA and the Nethercutt 
Amendment, the Kenyan government still resists signature of 
an Article 98 agreement with the U.S.  Academics, 
journalists, foreign governments and many Kenyan members of 
parliament regularly reinforce through speeches and public 
statements the GOK,s &brave8 stand against USG 
"arm-twisting.8 End Summary. 
 
2. (C)  While APSA sanctions penalize the Kenyan armed forces 
by reducing Kenya,s CT capabilities and cutting back on 
valuable bilateral interaction between our respective forces, 
the Kenyan military is loathe to lobby its political 
leadership.  Within the GOK there is no/no constituency in 
favor of an Article 98 agreement, and little concern over the 
impact our sanctions are having on Kenya,s defense 
capabilities.  While influential Kenyan cabinet figures would 
doubtless be interested in exploring some kind of quid pro 
quo with regard to Article 98 ) lifting the travel warning 
on Kenya, for example ) there is little we can, or should, 
offer as inducements for signing an Article 98 agreement 
beyond continuing to treat Kenya as a good and worthy ally. 
 
3. (C)  In a recent conversation with the Ambassador, 
Presidential Permanent Secretary Ambassador Muthaura 
confirmed that there had been no deliberation on the Article 
98 issue within the GOK for some time.  (Note:  Parliament is 
now out of session, and cabinet has suspended all business 
until after the November 21 referendum.  Little official 
business will be conducted by the GOK over the next five 
weeks.  End Note.)  In mid-August, Ambassador pressed Justice 
and Constitutional Affairs Minister Murungi on Article 98, 
and was told there was little chance the GOK would conclude a 
non-surrender agreement with the U.S.  Murungi asked, 
however, whether the U.S. would be willing to accept a 
combination of the existing SOFA, covering U.S. military 
personnel in Kenya, and &oral assurances from the highest 
level of the GOK that no USG persons would be surrendered to 
the ICC.8  Murungi argued that this would give the U.S. what 
it wanted, but allow the GOK to finesse possible criticism 
from the many groups that are now applauding its &stand8 
against the U.S. 
 
4. (C)  Embassy believes that Ambassador Bolton should meet 
with Attorney General Wako (reftel F), but without illusions 
as to his ability to sway the internal debate.  Wako will be 
aware of the state of play within the GOK, and may provide 
some additional insights into the GOK,s resistance, but he 
does not have the standing, or the inclination to break the 
current stalemate, despite the fact that Nethercott 
restrictions will soon sharply limit current U.S. 
capacity-building support to Kenya's Department of Public 
Prosecutions, which falls in Wako's baliwick.  Wako can be 
counted on, however, to carry back a strong message from the 
highest levels of the USG.  This would be a welcome addition 
to the pressure the Embassy has applied these past months. 
BELLAMY