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Cablegate: Tanzania Sofa: Limits of Tpdf Authority

VZCZCXRO8459
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHDR #0750/01 3080935
ZNR UUUUU ZZH
R 040935Z NOV 09
FM AMEMBASSY DAR ES SALAAM
TO RUEHC/SECSTATE WASHDC 8976
INFO RHMFISS/CDR USAFRICOM STUTTGART GE
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHNR/AMEMBASSY NAIROBI 1412
RUEHJB/AMEMBASSY BUJUMBURA 2993
RUEHKM/AMEMBASSY KAMPALA 3530
RUEHLGB/AMEMBASSY KIGALI 1457
RHMFIUU/CJTF HOA//J3

UNCLAS SECTION 01 OF 02 DAR ES SALAAM 000750

SIPDIS
SENSITIVE

DEPARTMENT FOR AF/E JTREADWELL, INR FEHRENREICH

E.O. 12958: N/A
TAGS: PGOV PINR PREL MARR TZ
SUBJECT: TANZANIA SOFA: LIMITS OF TPDF AUTHORITY

1. (SBU) SUMMARY: Visiting Africa Command Legal Counsel Colonel Jon
Lightner discussed Tanzanian concerns about a proposed Status of
Forces Agreement (SOFA) with senior GOT military attorney Brig. Gen.
Rwegasira on October 21. The meeting clarified that the Tanzanian
People's Defense Forces (TPDF) lacks authority to negotiate a SOFA
on the government's behalf. Neither is TPDF authorized to address
key differences over reciprocity for Tanzanian military personnel,
criminal jurisdiction issues, or the binding nature of a SOFA.
Having exhausted the military track for the moment, we will raise
the issue with MFA, which has yet to reply to the 2006 and 2008
diplomatic notes, to gauge the possibility of real progress. END
SUMMARY.

2. (SBU) Background: In November 2006 and July 2008, Mission
passed "global SOFA template" language via diplomatic note for GOT
consideration. On August 13, 2008, DATT received a "note verbale"
from TPDF proposing a Memorandum of Understanding (MOU) on Defence
Cooperation and, as an appendix to the MOU, a draft SOFA. In
December 2008, Brig. Gen. Rwegasira participated in an inconclusive
initial discussion via conference call with State/PM and DOD
officers. DATT arranged the October 21 meeting to review U.S. and
Tanzanian concerns in greater detail.

3. (SBU) Colonel Lightner and Embassy Office of Security Cooperation
(OSC) Chief met with Rwegasira in his office Oct. 21. Lightner gave
a detailed presentation on the importance of status protections to
the USG and outlined the benefits of such an agreement to the GOT.
He emphasized that a SOFA is not a presence agreement, but a set of
the ground rules for any activity with specific GOT approval.
Lightner noted that the language in the USG-proposed SOFA is
employed with USG partners worldwide, including those in Africa. In
addition, Lightner explained the administrative and technical (A&T)
status, as well as the operation of USG claims procedures. He
described the operation of the U.S. military justice system and
emphasized its applicability worldwide, noting that it has
jurisdiction over all crimes committed by our active duty service
members. In addition, Lightner highlighted some of the provisions
in the TPDF draft SOFA that the USG could potentially work with,
such as Article 1 (Entry, Residence and Departure), Article 2
(Military Discipline), Article 6 (Security), and Article 11
(Drivers' Licenses).

4. (SBU) Lightner and OSC Chief noted several aspects of the TPDF
draft SOFA that would pose problems for the USG. In particular, the
TPDF draft proposes full reciprocity for TPDF personnel, meaning
that the SOFA would apply fully to Tanzanian military personnel in
the U.S. Lightner explained that insistence on reciprocity would
significantly reduce the likelihood of achieving a SOFA, since it
would require elevating the SOFA to treaty status, requiring
Congressional approval. Further, Lightner pointed out that given
the nature and number of TPDF activities in the U.S., reciprocity
was not necessary.

5. (SBU) The TPDF draft SOFA also suggests that U.S. personnel be
subject to the criminal and civil jurisdiction of Tanzania.
Lightner pointed out that this provision (Article 5 of the TPDF
draft SOFA) runs contrary to USG policy of exercising jurisdiction
over its own personnel and seeking A&T status wherever possible.
Rwegasira indicated that immunity from prosecution under Tanzanian
law would be a significant "sovereignty" issue for the GOT.
Regarding A&T status, Rwegasira suggested the GOT would consider
granting status to a limited set of "senior leaders," but not all
personnel.

6. (SBU) Lightner highlighted several other key provisions that the
USG typically seeks in its SOFAs that were missing from the TPDF
draft SOFA, such as duty free importation/exportation, tax
exemptions, and exemptions from landing and other similar fees.
(Note: While not specifically mentioned at the meeting, there are
other problems with the draft TPDF SOFA, such as exclusion of DoD
contractors, processing of third party claims, and failure to
acknowledge professional licenses. End Note.)

7. (SBU) Rwegasira said the GOT preferred to separate the specific
defense related activities outlined in the MOU from the SOFA.
Rwegasira suggested it would be better to address cooperation and
status protection individually, with the SOFA in place before any
specific joint activities were proposed or approved.

8. (SBU) Rwegasira noted that several issues discussed, such as
professional licenses and tax exemptions, were outside TPDF
authority, and that a "broad agreement" as contemplated in the U.S.
global SOFA template was more appropriate for the Ministry of

DAR ES SAL 00000750 002 OF 002


Foreign Affairs to discuss. In addition, Rwegasira's assistant
commented that the GOT Attorney General did not consider the TPDF's
proposed MOU and SOFA to be a "binding international agreement."
Lightner responded that the U.S. sees SOFAs as binding international
obligations. (Note: A related U.S. concern, not addressed during the
meeting, is that the MOU - and thus the SOFA - would only be valid
for three years under the TPDF proposal.)

9. (SBU) COMMENT: Rwegasira's comments and questions during the
meeting made apparent that he now recognizes there are matters in
the proposed SOFA that are beyond the competency and authority of
the TPDF. Having exhausted the military track for the moment, we
will raise the issue with MFA, which has yet to reply to the 2006
and 2008 diplomatic notes, to gauge the possibility of real
progress. END COMMENT.

ANDRE

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