VZCZCXYZ0000
PP RUEHWEB

DE RUEHC #2115 3311755
ZNY SSSSS ZZH
P 271749Z NOV 09
FM SECSTATE WASHDC
TO AMEMBASSY NAIROBI PRIORITY 0000

S E C R E T STATE 122115

NOFORN
SIPDIS

E.O. 12958: DECL: 10/19/2029
TAGS: MARR MCAP MOPS PARM PINR PREL PTER MASS
SUBJECT: KENYA'S CONVENTIONAL ARMS END-USER CERTIFICATE
VIOLATION

Classified By: AF Johnnie Carson for reasons 1.4 (b) and (d).

¶1. (U) This is an action request. See paragraph 6.

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background
----------

¶2. (S//NF) Since late 2007, the Government of Kenya (GOK) has
assisted the Government of Southern Sudan's (GOSS) military,
the Sudan People's Liberation Army (SPLA), with the purchase
of Ukrainian-origin lethal military equipment (LME),
including T-72 tanks, BM-21 multiple rocket launchers, and
helicopters. The GOK signed a contract with the Government
of Ukraine (GOU) to facilitate this transfer. Publicly, the
GOK has stated the Ukrainian-origin LME was for the exclusive
use of the Kenyan military and that it has no military
training or technical ties to the GOSS. Privately, some
senior GOK officials have been less categorical in their
denials and indicate that they believe shipments are
consistent with the Comprehensive Peace Agreement (CPA). The
Kenyan Minister of Internal Security visited the Department
in 2006 and mentioned that this sale was in the making.

¶3. (S//NF) In April 2008, we first approached the GOU about
these transfers. Ukrainian officials indicated the equipment
was for use by the Kenyan military and that they did not
supply armaments to the GOSS. They also denied any military
training or technical ties with the GOSS. In August 2008, we
provided additional information on a shipment of LME from
Ukraine to Kenya and reiterated our concerns regarding the
diversion of LME to the GOSS. Ukrainian officials
acknowledged the sale of LME to Kenya but continued to deny
the possibility that the weapons were intended for or had
been diverted to the GOSS, noting an end-user certification
from the Kenyan government. Ukraine requested additional
information to substantiate USG claims that the equipment had
in fact been diverted to the GOSS.

¶4. (S//NF) In September 2009, ISN Acting A/S Van Diepen met
with Ukrainian officials and presented imagery of Ukrainian
T-72 tanks departing Ukraine, arriving in Kenya, and ending
up in South Sudan as clear evidence the Ukrainian arms
shipments to Kenya were ending up in South Sudan. The
Ukrainians responded that they had no relationship with the
GOSS, that their only contract was with Kenya, and that they
had no knowledge of any plan to divert the weapons to the
GOSS. Finally, they promised to investigate the transfer and
report back to the USG.

¶5. (S//NF) The United States and the international community
are concerned with the transfer of certain heavy military
weapons to the GOSS given the potential destabilizing effect
in the region. Now that we have addressed this issue with
the Ukrainians, Washington would like to approach the GOK to
obtain their version of the story. Under U.S. law, the
transfer of LME to any entity in Sudan, a designated state
sponsor of terrorism, by Kenya could trigger sanctions. END
of background.

--------------
action request
--------------

¶6. (S) Department requests Embassy Nairobi approach
appropriate host government officials, drawing from suggested
talking points in paragraph 8. The Department strongly
believes that the imagery portion of this demarche, which
will be sent separately, should be delivered by an IC
representative. To that end, the Department requests that
Embassy Nairobi coordinates this delivery with the local IC
officer. Note: This imagery may be shown to, but may not be
left with, GOK officials.

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objectives
----------

¶7. (S) Embassy Nairobi should seek to pursue the following
objectives:

-- Provide, as appropriate, GOK officials with information
regarding the transfer of Ukrainian-origin T-72s, BM-21
multiple rocket launchers, helicopters, and other LME to the
goss.

-- Acknowledge to GOK that we recognize the apparent
disconnect between the provision in the Comprehensive Peace
Agreement that acknowledges the need for southern Sudan to
have an appropriate military capability and our legislation
that prohibits foreign countries from supplying LME to the
Government of Sudan, which the GOSS is legally a part of.
However, retransfers of LME are required to follow
responsible guidelines established by numerous international
organizations.

-- Note to GOK officials the USG and the international
community's concern with the potential destabilizing effect
that the secret transfer of certain heavy military equipment
and small arms and light weapons (SALW) can generate in the
region.

-- Inform the GOK that because the Government of Sudan, which
includes the GOSS, is a U.S.-designated state sponsor of
terrorism, transfers of LME to Sudan would trigger U.S.
sanctions against supplier governments. As appropriate, Post
may also note that the legislation does include a waiver
provision and that a much stronger case for a waiver can be
made if the GOK is cooperative in this inquiry.

--------------
talking points
--------------

¶8. (S//REL KENYA) Begin talking points:

-- We have information that the GOK signed a contract with
Ukraine to purchase a variety of lethal military equipment.

-- As part of this transaction, Ukraine shipped more than 75
T-72 tanks, as well as a range of other lethal military
equipment to Kenya since November 2007.

-- You have publicly indicated that the equipment was for use
by the Kenyan military and that you did not supply any
armaments to the GOSS or SPLA. You also indicated that you
have no military training or technical ties to the GOSS.

-- However, we understand that part of this equipment was
retransferred to the Government of Southern Sudan, and we can
share some information with you that confirm this.

-- We recognize the apparent disconnect between the provision
in the Comprehensive Peace Agreement that acknowledges the
need for southern Sudan to have an appropriate military
capability and our legislation that prohibits foreign
countries from supplying lethal military equipment to the
Government of Sudan, of which the GOSS is legally a part.

-- We also recognize that some members of your government
informed some members of the USG that this deal was being
prepared.

-- However, retransfers of lethal military equipment are
required to follow responsible guidelines established by
numerous international organizations, beginning with the
United Nations.

-- This shipment represents one of the world's largest gray
market arms sales in more than ten years.

-- Items such as tanks are excessive to southern Sudan's
defense needs, and it will be difficult for it to maintain
them.

-- The United States and the international community are
concerned that transfers of lethal military equipment to
southern Sudan will have a destabilizing effect on regional
security by increasing the chances of an arms race with
Khartoum. We also are concerned that some of the equipment
could fall into the hands of other entities such as terrorist
groups as a result of a deliberate transfer, poor stockpile
security, or capture on the battlefield.

-- Because the Government of Sudan is a U.S.-designated state
sponsor of terrorism, transfers of LME to Sudan would trigger
U.S. sanctions against supplier governments.

-) These sanctions can be waived. A much stronger case can
be made for a waiver if Kenya cooperates in this inquiry.

End talking points.

-----------------
point of contact
-----------------

¶9. (U) Washington point of contact for follow up is Lou
Ganem, ISN/CATR.

¶10. (U) Department thanks Post for its assistance. Please
slug all responses for ISN, EUR, AF, and T.
Clinton