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Cablegate: Kenya: Parliament Moves to Prevent Investigation Of


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1. (SBU) Summary: Kenya's Parliament has passed a bill containing an
amendment to the country's primary anti-corruption law that would
effectively bar the Kenya Anti-Corruption Commission from
investigating corruption cases prior to May 2003. This brazen
attempt to secure immunity for some of the country's biggest past
looters appears to be have been orchestrated and paid for by at
least two different networks of corrupt individuals, including those
in league with ex-President Moi and his family. The very passage of
the bill casts Kenya in a negative light, but it's likely that
President Kibaki, partly in response to a chorus of local and
international protest, will send the bill back to Parliament for
deletion of the offending clause. We have weighed in strongly with
Kibaki to urge that he not sign the bill. End Summary.

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MPs Roll Back KACC's Power to Investigate Graft
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2. (U) On September 12 on a vote of 38 to 27 (out of a total of 222
voting MPs), the Kenyan Parliament passed the Miscellaneous Statute
Amendment Bill, an omnibus bill containing a grab-bag of amendments
to existing Kenyan legal code. Included in the bill is a clause
that prohibits the Kenya Anti-Corruption Commission (KACC) from
investigating any corruption cases prior to passage in May 2003 of
the bill that created the KACC, the Anti-Corruption and Economic
Crimes Act.

3. (SBU) Insertion of the clause and passage of the bill marked a
sharp turnaround from the Government of Kenya's original intent.
The GOK, through the Ministry of Justice and Constitutional Affairs
and the Attorney General's Office, had originally proposed several
amendments to the Anti-Corruption and Economic Crimes Act and other
laws that would have sped up prosecution of corruption cases,
conferred greater investigative powers to the KACC, and made it
easier to verify wealth declarations filed by public officers. Not
only did Parliament's Justice and Legal Affairs Committee, led by MP
Paul Muite, reject these changes. It also inserted the clause
significantly weakening KACC's powers. Speaking to the Ambassador
and Econ/C on September 25, KACC Director Aaron Ringera confirmed
that the clause, if it becomes law, would have a devastating impact
on KACC's ability to investigate under any Kenyan law any corrupt
activities dating prior to May 2003.

4. (U) Passage of the bill sparked a brief uproar in the media,
with civil society, the private sector, donors, and everyday Kenyans
expressing outrage at a measure that will effectively bar
investigation of the country's most infamous grand-scale corruption
cases, including the Goldenburg scandal of the mid-1990s and the
more recent series of security-related procurement scams
collectively referred to as the Anglo-Leasing scandals. Like-minded
donors, including the U.S. Mission, signed on to both a public
statement condemning passage of the clause and to a letter to
President Kibaki containing similar language and urging him not to
provide assent to the law. Text of the donor letter to Kibaki
follows below in para 12.

Kroll Report Adds Fuel to Fire

5. (U) Passage of the clause also came only two weeks after the
public release, via an unknown source, of the Kroll Report, a
forensic investigation commissioned in 2004 by the Kibaki
administration to trace the ill-gotten gains of former President
Moi, his family, and closest advisors. The report estimates that as
much as $2 billion was looted and laundered overseas, putting Kenya
under Moi on par with recent history's greatest kleptocrats.

6. (U) Unbowed by criticism of the clause, Justice and Legal
Affairs Committee Paul Muite went on the counterattack, justifying
the offending clause with a circuitous legal argument about the
underlying constitutionality of the KACC and the need to completely
overhaul the Anti-Corruption and Economic Crimes Act under a future
new constitution. He also sharply criticized the KACC and its
Director, Aaron Ringera, as being ineffective and compromised in
leading the war against corruption. On this latter point, he struck
a chord with some Kenyans, who are critical of Ringera and the KACC
for not being aggressive enough in tackling grand-scale corruption

Ringera: Stressed Out But Still Trying

7. (SBU) In meeting with the Ambassador on September 25, Ringera

showed the strain caused by the relentless public criticism of the
KACC and of himself personally. He reiterated that investigating
grand scale corruption is a long-term, painstaking process not
amenable to easy or quick results. On the Anglo-Leasing cases, he
said the KACC had sent five files for prosecution to the Attorney
General's Office, only to have them returned with a request that the
international elements of the cases be completed first. This,
Ringera explained, will further delay prosecution. In the UK, he
said, the Serious Fraud Office in London had only recently agreed to
undertake investigations into the Anglo-Leasing cases that have UK
links. Ringera also complained about the Kenyan legal system
itself, with its numerous loopholes that effectively preclude
prosecution of high-level corruption cases. On the Kroll Report and
on why no action was being taken to investigate the family of former
president Moi, Ringera said simply, "that's political." No one in
the Kenyan political elite, even in the opposition, seriously wants
to pursue the Mois, he said. (Note: Ringera has candidly admitted
in previous private meetings that investigations of ex-President
Mois or of President Kibaki are off-limits because they could
de-stabilize the country politically. End note).

Corruption Networks at Work

8. (SBU) Muite's legal arguments aside, it is clear to most
observers that he and other members of the Justice and Legal Affairs
Committee conspired to weaken KACC in a bald-face attempt to protect
different networks of corrupt former (and current) GOK officials.
Muite himself is the attorney for Chris Murungaru, a sitting MP who
was a prominent member of Kibaki's inner circle after 2002, but who
was dropped from the Cabinet in November 2005 due to credible
revelations placing him at the center of the Anglo-Leasing scams
(Note: Murungaru has also lost U.S. visa privileges under
Presidential Proclamation 7750 for his involvement in Anglo-Leasing.
End note). Supporting Muite was MP Njoki Ndungu, famous for her
activism on women's issues, but also quietly infamous as Murungaru's
girlfriend. Murungaru, said Ringera, almost certainly paid a number
of voting MPs to support the amendment, and was himself its loudest
backer on the floor.

9. (SBU) Reportedly seeking to protect the Moi family from further
investigation was Amina Abdullah, a nominated MP on the Justice
Committee who reportedly owes her position to the Mois. She is a
cousin of the wife of Gideon Moi, one of the ex-President's two sons
and the beneficiary of perhaps $500 million in ill-gotten gains
stashed overseas, according to the findings of the Kroll Report.

Comment: Will He Assent or Not?

10. (SBU) The clause barring KACC from investigating crimes
committed before 2003 is nothing short of outrageous, as it would
provide effective immunity from investigation and prosecution to all
those who have robbed Kenya of billions of dollars over the past
decade, significantly undermining the country's development. Its
very passage is a black eye to Kenya's international reputation, and
it sends a very negative signal to the private sector, including
foreign investors, and to donors about the country's collective will
to deal with corruption and improve governance. Further, in light
of this episode, we have no hope that Parliament will pass
longstanding draft anti-money laundering legislation before it
adjourns in the coming two weeks.

11. (SBU) Fortunately, the bill requires presidential assent to
become law. It is the hope of many in Kenya that the bill is so
egregious and transparent in its attempt to protect the corrupt that
it will provide President Kibaki with a perfect opportunity (and in
the middle of a competitive election campaign, no less) to do the
right thing - send it back to Parliament for deletion of the
offending clause. When KACC's Ringera attempted to meet with Kibaki
recently to urge him to do so, he was told the meeting was
unnecessary because the problem would be dealt with. This is a good
signal, and we're betting Kibaki will send the bill back to
Parliament shortly.

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Text of September 18 Donor Letter to President Kibaki
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12. (U) Begin text:

The Honourable Mwai Kibaki

Republic of Kenya

Mr. President:

We have been following the debate in Parliament hast week on a
clause in the Miscellaneous Statue Amendment Bill that will
effectively prevent the Kenya Anti-Corruption Commission (KACC) from
investigating corruption that occurred before 2003 and a clause
which would have allowed for the public disclosure of wealth
declarations by government officials.

The decision by Parliament sends a wrong signal to Kenyans and the
democratic partners on good governance and diminishes the
credibility of Kenya in its fight against corruption and impunity.
It is obvious that the proposed revision undermines the
effectiveness of the Anti-Corruption and Economic Crimes Act and the
work of the KACC. Also, we would like to draw your attention to the
fact that several countries have been requested by the Kenyan
Government to assist the Government in its fight of past corruption
cases. This international cooperation is now being clearly
jeopardized and will impact negatively on important efforts to
recover lost assets.

We therefore urge you not to provide assent to the bill that will
truly undermine the effectiveness of the Anti-Corruption and
Economic Crimes Act, 2003. This letter is being endorsed by
following democratic partners of Kenya: Canada, Norway, Portugal
(Presidency of the European Union and on behalf of all EU members
States represented in Nairobi), Switzerland and United States of
America and signed on their behalf.

End text.

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