Pressure is mounting for the government to act after the directors of a British company were Thursday jailed for bribing Kenyan officials.
Nicholas Charles Smith, 43, was jailed for three years by the Southwark Crown Court for bribing officials of the Interim Independent Electoral and Boundaries Commission (IIEBC) and the Kenya National Examinations Council (Knec) bosses so as to get printing contracts.
Smith’s father, Christopher John Smith, 71, was sentenced to an 18-month suspended term for his role in the scandal in which top IIEBC and Knec officials pocketed Sh50 million as bribes to award tenders to Smith & Ouzman Ltd.
The elder Smith was the company’s chairman, while Nicholas was the sales and marketing director at the time of the scandal. IIEBC is the predecessor of the Independent Electoral and Boundaries Commission (IEBC).
Focus now shifts to the Ethics and Anti-Corruption Commission (EACC) to investigate and prosecute the Kenyans named in the indictment against the Britons.
Those named with the two printers in the formal indictment are IEBC chairman Issack Hassan, Energy Cabinet Secretary Davies Chirchir, who served as a commissioner in the defunct IIEBC, former IEBC chief executive James Oswago, former IIEBC commissioners Joseph Dena and Ken Nyaundi.
'EXPOSED TO CORRUPTION'
Others are former IIEBC employees Kenneth Karani and Hamida Ali Kibwana, as well as Smith & Ouzman’s local agent, Trevy James Oyombra.
Also on the spot are former Knec chief executive Paul Wasanga and top officials, including Mr Ephraim Wanderi, Mr Michael Ndua and Mr Geoffrey Gitogo.
According to the prosecution, the two Smith & Ouzman directors paid bribes, code-named “chicken”, to the election and exam officials to influence the award of tenders to the printing firm.
“That you and the company should have been brought so low by the convictions before the court appears to flow from you, Christopher Smith’s decision to expand the business from the 1970s onwards into Africa,” said Judge David Higgins.
“This included the sort of material, at least from the 1990s, which the trial was concerned (with), namely electoral ballot papers of one sort or another and examination certificates.
“During the trial you, Christopher Smith, accepted you had been exposed to corruption once in Africa in the shape of land roadblocks, which you said you paid, and requested bribes for airport clearance, which you said that you refused.
“You, Nicholas Smith, accepted that propensity put to you that there was a culture of corruption in Africa.
“Having made the decision to expand into the African market, you, Christopher Smith, became aware that bribes were likely to advance your company’s financial interests on that continent.”
The crimes were premeditated, pre-planned, sophisticated and very serious, noted the judge.
Smith was ordered to observe a three-month curfew between 7pm and 6am.
The prosecution told the court that the bribes were wired to the account of Mr Oyombra, who would withdraw the money and give it to the election and exam officials.
Mr Oyombra would also hold meetings with the officials of both institutions to plan how tenders would be skewed in favour of Smith & Ouzman and the amount of bribes to be given out in return for the “favours”.
Smith & Ouzman would also foot at least some of the travel and accommodation costs of top IIEBC and Knec officials whenever they travelled to London, the prosecution stated.
They would also pay the officials some “chicken” so that they could shop for their families.
Speaking after the sentencing of the two Smith & Ouzman directors, the EACC said it was waiting for the evidence file from the Serious Fraud Office (SFO) in the UK in order to finalise its investigations into the case and forward its findings to the Directorate of Public Prosecutions (DPP) for action.
The EACC's head of communications, Mr Yassin Amaro, said the agency expects the SFO to furnish it with the evidence file next week.
“The SFO had asked for materials that would help them in the trial of the Smith & Ouzman executives and we duly submitted them,” he said.
“In turn, EACC wrote to the SFO three weeks ago asking for the evidence file to enable it (to) tie up loose ends in its investigations.
“I guess it is because the materials in the file were the same ones that would be used in sentencing the two British directors, I guess they will be in a position to send them next week,” Mr Amaro said.
DPP Keriako Tobiko confirmed that the anti-corruption agency was investigating the case.
“This is a matter of great public interest and I’ve been in touch with EACC, which has assured me that the matter is under active investigations. It is my hope that they will fast-track the case and hand over the file to my office for a decision,” Mr Tobiko told the Nation.
The EACC is investigating the involvement of top IEBC and Knec officials in the bribery case.
Mr Oyombra, through his lawyer Charles Kanjama, maintained that he was innocent.
“My client’s position is that he was not one of the accused persons in the case before the UK court and (he doesn't think) that the findings by the UK court apply to him,” the lawyer noted.
He continued: “He is not privy or party to the proceedings in the UK court. He pleads his innocence in the matter, that is very important.”
He confirmed that Mr Oyombra had been summoned by the EACC and recorded a statement.
“He has cooperated with the investigators and he has even given a statement upon request. You are aware that the people who are handling this matter are the EACC,” he added.
Speaking after the UK court delivered the judgment last December, SFO director David Green said:
“This is the SFO’s first conviction, after trial, of a corporate for offences involving bribery of foreign public officials. Such criminality, whether involving companies large or small, severely damages the UK’s commercial reputation and feeds corrupt governance in the developing world. We are very grateful to the Kenyan authorities for their assistance in this case.”
Evidence tendered in court showed how utterly corrupt the tendering process was, with the British firm being provided with copies of competing bids before they were opened.
The picture painted of the officials concerned was that of people who don't care about the costs for the country, so long as their “chicken” was paid, and at times left the printer to vary costs without comment.
The UK Serious Fraud Office, which investigated and prosecuted the offences, said in a statement:
“This case marks the first convictions secured against a corporate for foreign bribery, following a contested trial. The convictions recognise the corrosive impact of such conduct on growth and the integrity of business contracts in the Developing World.”
In a statement, Smith & Ouzman said: “The company fully accepts accountability for the actions of its directors and we apologise unreservedly.
"Christopher Smith and Nicholas Smith resigned as directors in December and are no longer part of the business. New directors will be appointed in due course."
Asked whether they will continue doing business in Africa, particularly regarding Kenya and Mauritania, they said they had no further comments beyond the above statements as matters of costs and declaration of assets are yet to be determined.