‘Chicken’: A second chance for Kenya to enforce national law

The jailing, last week, of two officials of the United Kingdom corporation, Smith & Ouzman, is the second recent case in which nationals of a foreign country have been jailed for offering bribes to Kenyan officials.

In the earlier case, in March 2013, a Finnish national, Nils Emil Norrgard, together with a Finnish company of which he was a senior representative, Wartisila Finland Oy, were convicted by a Finnish court on serious acts of bribery, contrary to Finnish law.

Both Norrgard and Wartisila were found guilty of paying bribes to Mr Samuel Gichuru, when he served as the Managing Director of Kenya Power and Lighting Company, and Mr Chris Okemo, at the time the Minister for Energy, intended to ensure that Wartsila won the international call for bids organised in 1996 by the Kenyan Government and the Ministry of Energy in connection with the contract to build a 75 MW power plant in Mombasa.

The conviction in Finland gave rise to a criminal case in Jersey where Gichuru and Okemo are wanted to answer charges of money laundering and fraud. Jersey is a self-governing dependency of the United Kingdom with its own international identity.

Last year, the Solicitor-General of Jersey, Harold Sharp, visited Kenya to press for the extradition of Gichuru and Okemo, a former Member of Parliament for Nambale and an unsuccessful candidate in the 2013 elections for Busia seat in the Senate.

Mr Sharp met with key officials including Attorney-General Githu Muigai and Director of Public Prosecutions Keriako Tobiko to understand the progress in the extradition proceedings that have been taking place in the Kenyan courts, which are meant to ensure that Okemo and Gichuru face justice in Jersey where they are accused of hiding large sums of money stolen from Kenyan taxpayers.

In April 2011, the Chief Justice of Jersey issued warrants of arrest against the two for alleged fraud and money laundering of sums of Sh900 million.

The following month a UK Minister, Henry Bellingham, while visiting Kenya, made a formal request to then Attorney-General Amos Wako for the arrest and transfer of Gichuru and Okemo to Jersey.

Later, extradition proceedings against the two started in a magistrate’s court.

At the time, the former Justice Minister, the late Mutula Kilonzo, publicly stated that the government had no choice but to comply with the extradition request. Wako later faced Okemo as his main opponent for the Busia senate seat.

A SMOKESCREEN

While the extradition proceedings started well, these were later complicated by a split in the office of the Attorney-General which yielded that of the Director of Public Prosecutions, a requirement of the new Constitution.

Within the government, there was uncertainty as to whom, between the AG and the DPP, was the proper authority for carrying out the extradition proceedings.

Observers, however, pointed out that the alleged uncertainty was contrived and was, in effect, a smokescreen to delay or defeat the extradition proceedings.

On its part, the Jersey government has emphasised that the money in issue was stolen from Kenya, and is Kenyan taxpayers’ money about which the Kenyan government should be concerned.

Their jurisdiction has been compelled to come into the case because the money was paid into and banked in that country.

A SECOND CHANCE

With the sentences last week, and the investigations announced by the Ethics and Anti-Corruption Commission, Kenya gets a second chance to enforce national law, for acts of bribery of its officials involving a foreign jurisdiction which has already taken decisive action against its own nationals involved in the same transaction.

It is to be hoped that this case will not suffer the kind of obfuscation that has befallen the Gichuru/Okemo extradition proceedings, where minutiae has been deployed to stall the extradition proceedings.

Already, the EACC is interviewing the Kenyan officials mentioned in connection with the bribery involving Smith & Ouzman, who have all denied the allegations of bribery.

It is to be hoped that the EACC investigations will go beyond the denials that have been made by those named in the scandal.

The difficulties that are likely to surround the investigations can be summed up by the reaction by one of them, Mr Ken Nyaundi, who has not only denied knowledge of, or dealings with, Mr Tervis Oyombra, who has been represented as the link between the Kenyan officials and Smith & Ouzman.

Mr Nyaundi has asked, rhetorically, how Mr Oyombra could have acted on his behalf when the two have never met or even exchanged a telephone conversation.

In particular, Mr Nyaundi has presented his position as having different considerations from what may face others alongside whom he has been mentioned and has, in effect, asked for a verification of the claims that he has never had any dealings with Mr Oyombra.

Of course, these allegations can be verified by checking previous communication records which, in addition to conducting comprehensive lifestyle audits for all the officials concerned, can provide clarity around the issues involved.

Without providing any supporting evidence, the Jubilee Government has maintained that it is committed to the fight against corruption. A chance now exists to show some evidence.

Even before these bribery allegations, the position of the chair of the Independent Electoral and Boundaries Commission, Issack Hassan, was shaky, because the country has refused to achieve closure over the 2013 elections while he remains chair of the IEBC.

This scandal only compounds his position, and calls for a speedy investigation and a public statement of what these investigations will find.

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