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Viewing cable 09NAIROBI1938, VISAS DONKEY: CORRUPTION 212(F) VISA DENIAL

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Reference ID Created Released Classification Origin
09NAIROBI1938 2009-09-16 09:09 2010-12-08 21:09 SECRET Embassy Nairobi
Appears in these articles:
http://www.spiegel.de/
VZCZCXYZ0002
OO RUEHWEB

DE RUEHNR #1938/01 2590924
ZNY SSSSS ZZH
O 160924Z SEP 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0989
INFO RUEHLO/AMEMBASSY LONDON PRIORITY 3327
RHEHNSC/NSC WASHDC PRIORITY
<<225330>>
9/16/2009 9:24
09NAIROBI1938
Embassy Nairobi
SECRET
08STATE81854|09NAIROBI1830|09NAIROBI1831|09NAIROBI1859
VZCZCXYZ0002
OO RUEHWEB

DE RUEHNR #1938/01 2590924
ZNY SSSSS ZZH
O 160924Z SEP 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0989
INFO RUEHLO/AMEMBASSY LONDON PRIORITY 3327
RHEHNSC/NSC WASHDC PRIORITY
TAGS: CVIS ECON KCRM KE PGOV PREL KCOR
SUBJECT: VISAS DONKEY: CORRUPTION 212(F) VISA DENIAL 
REF: A. 08 STATE 81854


S e c r e t nairobi 001938

Sensitive
sipdis

Dept for af a/s carson, inl/c/cp jane becker, nsc for
senior director gavin

E.o. 12958: decl: 09/09/2019
Tags: cvis, econ, kcrm, ke, pgov, prel, kcor
Subject: visas donkey: corruption 212(f) visa denial

Ref: a. 08 state 81854
b. Td-314/014437-09
c. Nairobi 1830
d. Nairobi 1859
e. Nairobi 1831

Classified By: AMBASSADOR MICHAEL RANNEBERGER. FOR REASONS 1.5(B) AND (
d).

1. (C) Embassy is seeking a security advisory opinion under
Section 212(f) of the Immigration and Nationality Act,
Proclamation 7750, suspending the entry into the United
States of Aaron Gitonga Ringera and members of his family.
Ringera was born in Meru, Kenya on June 20, 1950. Post
strongly believes Mr. Ringera has engaged in and benefited
from public corruption in his capacity as Director/Chief
Executive of the Kenya Anti-Corruption Commission (KACC) for
the last five years by interference with judicial and other
public processes, and that this corruption has had a serious
adverse impact on U.S. national interest in the stability of
democratic institutions in Kenya, U.S. foreign assistance
goals and the international economic activities of U.S.
businesses. Ringera travels frequently to the U.S. He is
expected shortly to apply for a U.S. visa. The following
provides information requested in ref a, paragraphs 26-28.

2. (C) Justice (retired) Aaron Ringera has been
Director/Chief Executive of the Kenya Anti-Corruption
Commission since its inception in 2004. During this period,
despite a string of major corruption scandals that have come
to light before and after his appointment, he has not only
failed to successfully investigate a single senior government
official, he has actively thwarted their successful
investigation and prosecution by teaming with Attorney
General Amos Wako (ref b). Ringera is part of a system that
has evolved over time involving the Attorney General and the
judiciary that works together to avoid or suppress
investigations/prosecutions of top GOK officials. Ringera
provides cases via investigation to the Attorney General's
office and insists that they're strong cases. The Attorney
General fails to prosecute, arguing that the cases are poorly
investigated and sends them back to Ringera. If any cases of
significance leak through and go to court, the judiciary can
be counted on to quash those that are the most sensitive at
the direction of senior government officials. Ringera's key
role was recently confirmed by the irregular manner in which
he was reappointed on August 31 by President Kibaki to a
second five-year term. The "process" involved in Kibaki's
decision-making demonstrates that key players in the GOK
hierarchy wanted to retain Ringera to avoid having to deal
with a new and potentially effective KACC Director (ref d).
Leading anti-corruption NGOs have repeatedly noted that "no
politically significant corruption case has been successfully
investigated by the KACC" under Ringera.

3. (S) Justice Ringera's corrupt practices have come out in a
number of ways, most prominently in a recent book, "It's Our
Turn to Eat," an account of the resignation of former Kenya
anti-corruption czar John Githongo. Ringera's involvement
with death threats, which Githongo asserts repeatedly in the
book, is corroborated by ref b (described in para 7 below).
Leading anti-corruption NGOs have followed Ringera's work for
years and firmly believe that his gross negligence is
intentional, making him a ready accomplice. Ringera's own
submission to President Kibaki in 2006 regarding the
Anglo-Leasing scandal concluded that a number of senior
officials should have been prosecuted. To date, none of them
have. Finally, the 2006 Parliamentary Public Accounts
Committee report on Anglo-Leasing makes a number of
recommendations to the KACC, none of which have been carried
out. The clear pattern of Justice Ringera's material
negligence and his involvement in attempts to violently
suppress information on corruption constitutes corruption in
and of itself.

It's Our Turn to Eat

4. (C) "It's Our Turn to Eat" chronicles former Kenya
anti-corruption czar John Githongo's rise and fall from power
in Kenya in the early days of the post-Moi administration
under then new President Mwai Kibaki. The book, by Financial
Times reporter Michela Wrong, outlines in particular
Githongo's investigation of the Anglo-Leasing scandal.
Anglo-Leasing was one of a series of phantom entities used to
perpetrate fraud on the Kenyan taxpayer through non-delivery
of goods and services alongside significant overpricing. The
beneficiaries include the most senior levels of the GOK.
However, due in part to Ringera's complicity, not a single
senior government official has been successfully prosecuted
for the theft of hundreds of millions of U.S. dollars from
Kenya. Justice Ringera has played his part in not pressing
hard on this case and attempting to discourage Githongo from
releasing information and investigating Anglo-Leasing
further. The book is drawn primarily from interviews with
John Githongo and Githongo's writings from his time as
anti-corruption advisor to President Kibaki. Githongo's
interactions with Ringera paint the picture of a man
(Ringera) who is part of the system within the GOK that
protects its own from prosecution regardless of the crime
committed and will, if necessary, kill to enforce the system.
On November 4, 2005, Githongo admitted to Ringera his
realization that the GOK leadership (among them President
Kibaki) really only wanted him there as window dressing to
"go through the motions" in fighting corruption. Ringera
agreed and said, "So you stay there, you are a little wiser
and you know that you are there. You can't, in fact, afford
to make any move. That's when you will really be killed."
Ringera added, "If you wanted to resign and go today, that's
when they would kill you." In February 2006, Githongo was
speaking with Ringera in London one last time before Githongo
resigned and went into exile. According to Githongo, Ringera
told him that Kenyan intelligence "would put something in
your tea" if Githongo went public with what he knew.

5. (C) Githongo's belief that Ringera was part of the
corruption problem was largely based on the latter's
unwillingness to be responsive to the dossier of information
on Anglo-Leasing that Githongo had put together. Two
instances led Githongo to this conclusion. At the end of
2005 when President Kibaki failed to respond to the dossier,
he sent a copy to Ringera. Githongo said, "I'd told him,
"I'm ready to come and share incontrovertible proof with you,
just ask me." There was no response from Ringera. At the
same time, it was clear that Ringera was not independent of
President Kibaki. According to the book's author, "The day
we met he (Ringera) boasted that he had never taken a
telephone call from the presidency during his time in office.
But a former colleague says he never needed to, going round
in person to State House to receive instructions. He would
call staff together and say: the message from the president
is A, B, C, and D." Ref d's tale of Ringera's sudden and
back-door reappointment by President Kibaki on August 31,
2009 confirms that Ringera is part of the cabal keeping a lid
on justice, ensuring senior GOK officials are never held
accountable for their corrupt acts.

6. (C) More evidence of Ringera's involvement in protecting
the corrupt elite came when Githongo testified to the KACC on
Anglo-Leasing in March 2006 in London at the Kenyan High
Commission. According to the book, "Understandably wary,
John had insisted his evidence be taped. Yet at the end of
two days of testimony - long enough, one would have thought,
for any malfunction to be detected and rectified -- Ringera
informed John the recording equipment had failed and his
words were, sadly, inaudible. There would be no audio
transcript, only a KACC-drafted summary. After delivering
that bombshell, Ringera waxed astonishingly candid about the
charade being staged for public consumption. There would be
no Anglo Leasing prosecutions until after the 2007 elections,
if ever, he said. When John's lawyer asked when his client
could return to Kenya to give evidence, Ringera said: "no,
no, I wouldn't advise that." According to the book, "a
former lead KACC investigator who had accompanied Ringera to
London went public to confirm the details of the
conversation. I was amazed at what Ringera said. There was
no indication whatsoever the equipment wasn't working. You
don't go for days without once going through what you have
recorded." Once again, the head of Kenya's anti-corruption
body was doing his best to halt an investigation.

Td-314/014437-09

7. (S) Paragraph 5 provides details of statements made by
Ringera to Githongo that Githongo took as direct threats to
his life by the Kenyan political elite, to include Ringera.
This TD corroborates Githongo's conclusion about Ringera who
is identified in a room with leading Kikuyu politicians,
including Ministers of government, plotting to kill Githongo
in 2009. The conclusion one can draw from this report,
combined with Githongo's testimony, is that Ringera is part
of those within the Kenyan political elite seeking to
suppress information and those with information that could
assist in punishing and minimizing corruption in Kenya.

Parliamentary Public Accounts Committee Report on
Anglo-Leasing

8. (C) In March 2006, the Kenyan National Assembly's Public
Accounts Committee (PAC) released its report on
Anglo-Leasing. In its general recommendations, the PAC said
the KACC Director "should liaise with the Attorney General,
the Police Commissioner, and other relevant bodies with a
view to prosecuting persons who were involved in negotiations
and approval of the procurement of Passport Issuing
Equipment" (one of the fraudulent Anglo-Leasing contracts).
To date, after more than three years, the KACC, under
Ringera's direction, has not carried out this action. The
report further recommends that the "KACC should hasten its
investigations and make its report public as soon as
possible." In fact, KACC has done the opposite.
Investigations have ceased and there is no public report.
Per ref e, both the PAC report and Githongo have made clear
the complicity of then Justice Minister Murungi in covering
up Anglo-Leasing. Despite the evidence, Ringera has never
followed through on the investigations into Murungi's role in
the mega-scandal.

KACC Status Report to President Kibaki on Anglo-Leasing

9. (C) In June 2006, the KACC under Justice Ringera provided
a brief report to President Kibaki regarding Anglo-Leasing
entitled, "Status of the Investigation of Security Related
Contracts." In that document, the KACC indicates that there
is "a probability of prosecution" for four senior government
officials, including former Vice President Moody Awori,
former Minister of Finance David Mwiraria, former Minister
for Internal Security Chris Murungaru, and current Attorney
General Amos Wako. Not one of them has been successfully
investigated and prosecuted on the Anglo-Leasing case. Two
groups of businessmen are also specifically linked to
fraudulent Anglo-Leasing contracts -- those linked to the
Kamani family and those linked to Anura Perera. Neither of
those principals or their families have been successfully
investigated and prosecuted. Again, as is demonstrated also
in paragraph 8, there is a pattern of behavior by Justice
Ringera that makes it clear that he is part of the shell
game, rather than trying to fight it. KACC reports indicate
that investigations are underway and prosecutions are
"probable" and that there is evidence of corrupt acts yet the
record, particularly for those at the top of government and
business, are unsuccessfully investigated or prosecuted or
there is no action over a number of years. This is
particularly damning when the KACC is not following up on its
own recommendations. As one NGO has noted (see below), it is
currently rare for KACC reports to even mention
Anglo-Leasing, one of the largest scams in recent Kenyan
history, let alone investigate the case.

NGO Views of Ringera

10. (SBU) Ref d reports Ringera's reappointment by President
Kibaki to a second five-year term as KACC Director. Key NGO
reactions, aside from expressing opposition to the process of
Ringera's reappointment, called into question his performance
and how it warranted reappointment. xxxxxxxxxxxx said the following:

"Public service legitimacy depends on the faithfulness of
public service to the aspirations of the citizens. The track
record of KACC is testimony of betrayal of this principle.
No politically significant corruption case has been
successfully investigated by KACC. While the reasons for
this dismal performance lies with the President, cabinet,
judiciary, Attorney General's office and parliament, the buck
stops with the head of the anti-corruption oversight
institution. He should have recognized the structural and
policy weaknesses that were going to lead to this failure and
resigned. Or fought for fundamental reforms in a way that
was both visible and credible. In democratic states,
oversight institutions required application of "arms-length"
principles in their leadership, functioning and resourcing.
For a president to appoint the head of an institution that
would take him/her to jail if s/he was corrupt is a travesty
of democratic governance principles. KACC is the one
institution, if any, whose head and staff should owe no
loyalty to the executive they should be investigating."

11. (SBU) Mars Group Kenya, another anti-corruption NGO,
reacted to Ringera's reappointment as follows: "Apart from
the possible illegality of his new tenure, Kenyans will no
doubt wonder why Justice Ringera merits reappointment in view
of the abject failure of the KACC under his leadership to
make a meaningful contribution towards ending grand
corruption impunity in Kenya."

12. (C) There are two key points in these paragraphs. First,
the KACC is the body that must lead on corruption. Ringera,
who frequently attempts to shift the blame to the Attorney
General (and, per ref c, he is certainly blameworthy), is, in
fact, not taking up fully the duties that are allocated to
him under Kenyan law. His successes have been of the "small
fish" variety. While decrying the KACC's insignificant
results (which his own staff has reported to us), Ringera
does not act to resolve them or to protest by taking bold
steps to expose those involved in holding up action against
corruption or to resign given the ineffectual nature of his
organization. The second point, regarding the reappointment
makes it clear that Ringera is entirely beholden to President
Kibaki and those around the President, many of whom are
linked to various forms of public corruption over a long
period of time. That lack of independence and clear
connection to the political/corrupt elite inextricably links
Ringera to the corruption that is dragging Kenya away from
the fundamental reforms necessary to assure democratic
stability and economic prosperity.

13. (C) In March 2007, Mars Group issued a review of the
KACC's activities from 2005-2007. In the report, Mars
focused in part on KACC's efforts on the largest corruption
cases, such as Anglo-Leasing. Its conclusion, among others,
is that "prominent personalities are more likely to benefit
from a recommendation to the KACC to close their files than
less prominent public officers." They noted that two key
players linked directly to Anglo-Leasing and its cover up,
former Finance Minister Mwariria and current Minister of
Energy (ref e) Kiraitu Murungi, were such ministerial
beneficiaries of apparent KACC largesse.

Serious Effect on U.S. National Interests

14. (C) KACC Director Justice Aaron Ringera's five years of
involvement in public corruption through interference with
judicial and other public processes have had serious adverse
effects on those U.S. interests specified in Proclamation
7750 as well as U.S. foreign policy priorities of promoting
democracy and good governance and sustainable economic
development. Overarching all U.S. interests in Kenya is the
need for the GOK to implement the reform agenda agreed to by
all major political parties in the aftermath of the 2008
post-election violence. This agenda -- which focuses on
accountability for the violence and preventing corruption
through constitutional revision, electoral, judicial, police
and land reform, is essential to democratic success, economic
prosperity, stability and security in Kenya. As made clear
by Secretary Clinton during her August 2009 visit to Kenya,
pressing for implementation of the reform agenda and
dismantling Kenya's culture of impunity is at the core of
U.S. policy. Without significant progress on the reform
agenda, including significant curbs on corruption, Kenya will
almost certainly repeat (or surpass) the election-related
violence ahead of/during/after 2012 elections. By
obstructing due process and committing corrupt acts, Ringera
has demonstrated that he is an obstacle to reform in Kenya
and a major contributor to the country's culture of impunity.
As a result, he stands against vital U.S. interests in Kenya.

15. (C) Stability of Democratic Institutions and Nations:
Justice Ringera's active participation in a system that
protects senior officials from punishment for corrupt acts
obstructs the fundamental reforms required for Kenya to
ensure democratic stability. Not moving forward on scandals
like Anglo-Leasing or Goldenberg (ref c) means that many of
those suspected of stealing massively from the country's
treasury have remained not only unpunished but on the job as
Ministers of Government to this day. His protection has
ensured that they continue to be in a position to steal funds
to support election campaigns, and incite/support violence.
For example, per ref e, after leaving the Ministry of
Justice, Kiraitu Murungi went on to be Energy Minister where
he once again has benefited from public corruption. In
addition, per ref b and the credible reporting of John
Githongo, there is strong evidence that Justice Ringera is
involved in planning violence to suppress those who would
expose corruption and seek to act to halt it. That kind of
planning with involvement of elements of the Kenyan state is
a direct assault on democracy and institutions in this
country. At the same time, it is clear to all Kenyans that
participating in public corruption, especially if you are
among the political elite, does in fact pay. There is
little, if any threat of punishment. In a September 2009
letter to Ambassador Ranneberger describing his achievements,
Ringera argues that he has recommended prosecutions of
Ministers, MP's and others on corruption charges. Yet none
of them have been prosecuted. In the case of Anglo-Leasing,
he asserts that he is held up by various court cases that
have impeded prosecution. He and the Attorney General act in
concert to decry these circumstances, some of which have been
in place for years, but they do not act separately or in
concert to seek changes to law or to key rulings to ensure
that the cases move forward. After five years of working
together, their collaboration rather appears to be an
elaborate system of maintaining the appearance of activity
while achieving the reality of inactivity. The corrosive
nature of this culture of impunity has: directly undermined
the ability of the Kenyan economy to grow at levels required
to move the population to middle income status; built a
permanent level of disregard for the rule of law and the
institutions that are meant to enforce those laws; and
reinforced a system whereby the government does not serve its
population but further marginalizes it while enriching those
in power. The bottom line is that the Kenyan state is weaker
and less able to enhance the lives of its population and
maintain the security of the country's already porous and
dangerous border areas.

16. (C) U.S. Foreign Assistance Goals: According to
Transparency International, the Goldenberg scandal alone
directly cost the Kenyan taxpayer an estimated $500 million.
Anglo-Leasing as well damaged the Kenya government and people
to the tune of hundreds of millions of dollars more. Under a
KACC Director committed to protecting the Kenyan people,
those most directly involved and benefiting from this scandal
would have been aggressively investigated and prosecuted.
That has not been the case. With economic prosperity and
poverty alleviation at the heart of our foreign assistance
goals, the ongoing damage done by: (a) not returning the
funds stolen from the Kenyan people, and (b) encouraging
continued public corruption by maintaining the culture of
impunity limits our ability to provide assistance to the
government, denies hundreds of millions of dollars to the
public that could otherwise be utilized to assist in
developing the country, and slows dramatically the
construction of the infrastructure required to create the
environment in which domestic and foreign investors could
thrive.

17. (C) International Activity of U.S. Businesses: In his
five years in office, Justice Ringera has helped to maintain
the institutionalization of the culture of impunity that is
rife in Kenya. Under Ringera's leadership, the KACC has
actively participated in a system that works to discourage
investigation, minimize the likelihood of prosecution, and
throw out court cases that appear to have a chance of taking
down senior GOK officials charged with corruption. Like the
Attorney General, Justice Ringera can claim a perfect record
of not investigating and convicting a single, senior GOK
official. This is a remarkable tally in a country that is
consistently ranked among the most corrupt in the world.
That level of impunity only encourages greater and greater
corruption throughout Kenya at all levels. The resulting
corruption has a direct impact on U.S. business attempting to
operate in Kenya from the police roadblocks set up along
major transport routes, to moving goods to/from the Port of
Mombasa, to fighting counterfeit products that are
undermining American manufacturers based here, to simply
being able to operate on a day-to-day basis with bribe-
seeking local and regional officials. The KACC Director's
corruption - protecting the most corrupt from accountability
-- ensures that U.S. businesses struggle in Kenya.

In Summary

18. (S) Justice Aaron Ringera, is at the heart of Kenya's
debilitating corruption problem. While it was anticipated
that he would be part of the solution when he took office, he
has, instead, become an important element in a system of
protection for political elites. Post strongly believes that
Mr. Ringera has engaged in and benefited from public
corruption in his capacity as KACC Director for the past five
years by interference in public and judicial processes. The
record demonstrates that:

-- the KACC Director is part of the group protecting itself
from prosecution for the Anglo-Leasing scandal;
-- he participated in at least one meeting in which the
attempted assassination of John Githongo was planned this
year;
-- he was aware of threats to Kenyan anti-corruption official
John Githongo and shared them with Githongo as an apparent
intermediary;
-- Ringera has not successfully investigated for prosecution
a single case involving a senior GOK official in five years
in a country that is consistently rated as among the most
corrupt in the world;
-- Ringera has not acted on recommendations from Parliament
or followed through on his own recommendations for
prosecution to the President of Kenya;
-- Ringera has stopped pursuing Anglo-Leasing cases, one of
Kenya's largest scandals for which no senior level
investigations/prosecutions have been concluded;
-- The backdoor manner in which Ringera was reappointed makes
clear the premium value placed on him heading the KACC among
the political elite.

Additional Information Required for Finding

19. (C) Mr. Aaron Gitonga Ringera has not been informed of
the fact that he may be ineligible for a U.S. visa under
section 212(f) of the INA and Proclamation 7750.

20. (C) Mr. Ringera's last visa issuance was a G2 that
expired on July 15, 2007. Mr. Ringera has travelled
frequently to the United States. He is expected shortly to
apply for a U.S. visa.

21. (C) Ringera has traveled to the United States five times
since 1997, including three times in 2007. He has been
issued J1, G2, and A1 visas. He currently carries a Kenyan
diplomatic passport D009090 that expires January 19, 2010.
Ringera xxxxxxxxxxxx. We have not
established whether or not Ringera has children and, if so,
who they are.

22. (C) Because of the serious effect of Mr. Aaron Ringera's
corruption, Post recommends that Mr. Ringera be excluded for
travel to the U.S. under section 212(f) of the INA and that
no exception be granted.






Ranneberger