Will Kamlesh Pattni’s court victory encourage Uhuru and Ruto on ICC cases?

"Magnate"

Obviously this is an irreverent question, and not the sort of thing that could be countenanced in academia or in diplomatic circles. But I just couldn’t help myself since I write about practical realities in politics and governance here, while watching the podcast of Maina Kiai and Joel Barkan discussing the “Implications of the Kenyan Election” @NED and a question from the audience has inquired about the latest Pattni ruling.

Last week we learned that Kamlesh “Paul” Pattni, one of Kenya’s wealthiest “men of business” (not like Uhuru, apparently, but very wealthy) had been the beneficiary of a big legal breakthrough as the media reported that High Court Justice Joseph Mbalu Mutava had ruled back in March that Pattni could not be prosecuted in the trial courts for the notorious Goldenberg corruption scandal.

“Judge defiant after clearing Pattni of Goldenberg scam”

The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored is flawed and that most witnesses had died or their memories have faded.

Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.

On Pattni’s prayer that the media be barred from reporting on the case, the judge said that the court could only intervene to set parameters of reporting to protect someone’s rights.

Last November, Justice Mutava’s conduct was put to question in a petition filed against him by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict (ICPC). It sought to have the judge removed from office over his handling of the Pattni cases.

ICPC had argued that the whole matter had not been handled through the correct procedure and some court orders made were outside of the law.

The petitioner had faulted the judge’s handling of the case and accused him of being part of “an orchestrated cover-up to aid and abet Pattni’s criminal conduct”.

Justice Mutava was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.

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New Development in Reading the Pre-Election Kibaki Tea Leaves: GOK repays DfID for “education scandal”

I don’t want to make everything that happens in Kenyan government and politics in early 2013 “about” the Kibaki succession, because, of course, there are the “down ticket” races that matter, too.  Nonetheless, I was fascinated to see the news in the Standard this afternoon that the Kenyan government had repaid the British official aid agency DFID for losses on the “education scandal” that was current news at the time I started this blog just more than three years ago: “Kenya repays stolen fee education cash”.

The “education scandal” and the “maize scandal” were the two big breaking new corruption eruptions under the Government of National Unity that served to remind everyone that simply adding part of ODM to the second Kibaki Adminstration in April 2008 did not in itself solve anything regarding corruption.  The “maize scandal” was a new and insidious plot for the corpulent corrupt to “eat” off of hunger in the food crisis in 2009; the “education scandal” was the revelation of an older and ongoing insidious plot for the elite to steal from school children, dating to the inception of “free primary education” early in the first Kibaki Adminstration.

Why repay the money now?  One suggestion might be that this is an indication that Kibaki does have concern about his post-presidential reputation, his “legacy”.  Perhaps there is something to this.

Of course, Kibaki is a master of not communicating his intentions, conducting affairs behind closed doors and letting Western (and Kenyan) observers who feel compelled to do so offer speculative analysis and opinion to substitute for actual knowledge about what he is up to.  So who knows?

Amazingly, to me anyway, I have read otherwise trenchant reports and analysis of various aspects of the Kenyan situation that include unembellished lines to the effect that Kibaki will not be a major factor in the upcoming election as he is concluding his second and final term.  To me, it is quite obvious that H.E. Mwai Kibaki will remain the most important individual in the 2013 Kenyan presidential election until he passes the mace to his successor.  With the new constitution, partially implemented, he has less direct and formal power in the 2013 election than he had in the 2007 election.  He remains, nonetheless, far more powerful than any other single individual, even Uhuru Kenyatta or Raila Odinga certainly, and more by far than any one member of his inner circle.  How he will use that power, and how much we will even ever know about how he uses that power, are in question.

Would it be hard for Kibaki to hand off the presidency to Raila Odinga this time?  The polls show Odinga leading but Uhuru in range with just a few weeks to go, so in some ways the race is similar to 2007.  Not to suggest that Kibaki would prefer Uhuru in the way that he preferred himself in 2007, just taking note of the parallels.  Some people have suggested that he might prefer Saitoti or later Mudavadi to either Raila or Uhuru, but did they really know something or were they going on guesses, rumours or even misinformation? Certainly the dynamic of having a possible runoff and the need to win in the counties makes things different and more complicated this time.  It will be interesting to watch.

In the meantime, congratulations to DfID and I will hope that President Kibaki does in fact want to leave office with the best possible reputation on governance and corruption issues in these closing weeks.  UPDATE: (I do think that it must be noted that there is no indication here of an intent to actually recover “stolen” funds, rather that the Kenyan taxpayers are taking up the burden from the British taxpayers.)

Here is news from Saturday, Jan. 12 that President Kibaki has refused to assent to the hugely controversial Retirement Benefits bill passed by the 10th Parliament on their way out of office, awarding themselves a big gratuity of 9.6M KSh on leaving office, along with post-parliamentary benefits such as state burial and security, diplomatic passports and airport VIP lounge access.

“And the beat(ings) go on . . .”; as 2007 bleeds into 2013, what would it take for Human Rights Watch and others to make Kenyan politics less deadly?

The latest Kenya release from Human Rights Watch, dated yesterday, decries the terrible beating of Kenyan activist Okiya Omtatah Okoiti.

Omtatah, executive director of Kenyans for Justice and Development (KEJUDE) Trust, a local NGO that advocates for transparency and accountability, was attacked by two unidentified men in central Nairobi. He lost six teeth and suffered serious injuries to his face and the back of his head, which required surgery. Omtatah told Human Rights Watch and ARTICLE 19 that the attackers demanded that he withdraw a lawsuit he filed to demand accountability in the procurement of biometric voter registration (BVR) kits because of corruption associated with the process.

“This vicious attack was clearly meant not just to intimidate Omtatah but to seriously injure him – and perhaps even to kill him,” said Leslie Lefkow, deputy Africa director at Human Rights Watch. “The aim seems to be to stop his work on corruption in the procurement of biometric voter registration kits for the upcoming elections.”

Certainly this is a crucial and timely issue in working toward integrity in the upcoming Kenyan election and in protecting an activist who took a big risk in pursuing legal action against election-related corruption. So kudos to Human Rights Watch and Article 19 for calling attention to the attack. Unfortunately, it is hard to imagine that anything will actually happen as a result of this statement that “[t]he Kenyan authorities should promptly and thoroughly investigate a serious physical assault . . . and bring appropriate charges.” Of course, they should–that goes without saying; of course. they won’t.

Why won’t they? Are they confident they can wait it out and the outside actors and international players who care about Omtatah now will move on to the next outrage, the next victim, without really disrupting the vicious cycle?

Why would I suggest this? Not to be gratuitously critical of Human Rights Watch or any of the many organizations trying to support human rights defenders. Rather I say this on the basis of my own hard-earned experience with well-intentioned failure in dealing with election fraud and violence in Kenya in 2007/08. I moved my family to Kenya for a year to help support democracy in the last election cycle–we were able to take in a couple of displaced families for a few months after the election, and help a few others a bit, but nothing that I did in my NGO work really changed anything as far as upholding democracy. My organization, IRI, issued a report noting the election fraud, in July 2008, and in August 2008 released the exit poll showing that voters at the polls on election day reported favoring the opposition, before the mark-ups of the tallies for the incumbent at the Electoral Commission in Nairobi afterwards. But these reports were months too late to really matter. It is going to take more to make a difference in the brutal world of Kenyan politics.

So how does Human Rights Watch yesterday describe what happened with the 2007/08 election situation:
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Good reads

“Kenya’s once safest town, now famous for the wrong reasons” Xinhua,

Kenya’s northern town of Garissa that was once voted as the safest town in East and Central Africa by Interpol has all of a sudden lost its glory as it continues experiencing a spate of grenade and gun attacks allegedly being executed by Al-Shabaab militants. . . .

“Somaliland Elections: Everything’s fine, except when it isn’t” Progressio Blog.

“Why fighting corruption in Africa fails” by William Gumede in Pambazuka News.

The Citizen reports on the release of the 2012 Afrobarometer “Round 5” poll for Tanzania, highlighting growing public perception of corruption by the CCM government.

Uganda: New links for ongoing themes . . .

Uganda will review its commitment of forces to the AMISOM mission in Somalia due to being “stabbed in the back” by accusation of arming rebels in DRC.

Today, Uganda’s Media Council ordered suspension of a play entitled “State of the Nation” about corruption and poor governance, pending a “review”.

The Ugandan Speaker of Parliament, Rebecca Kadega, is attracting popular support for standing up to pressure on a recent trip to Canada on the longstanding “anti-homosexuality” bill, and rejects the notion that she should block debate on the bill to appease aid donors or avoid visa suspensions.

In the meantime, two patients from a road accident reportedly died after the ICU in Uganda’s largest hospital closed recently due to lack of equipment:

According to a research paper published by the Bio Med Central Journal, Uganda has only one ICU bed for every one million Ugandans. The paper reveals that critical care remains neglected with many patients with potentially treatable conditions unable to access services.

Ideally, with Mulago’s 1,500 bed capacity, at least 150 of them should be in a high dependency ward for people who need more intensive observation and treatment.

Other departments that have ICU beds in the hospital are the pediatric ward (4) which are not working, the Heart Institute (4) and the Cancer Institute (3) while the general ward has 12 beds with no equipment. Other public hospitals that have functioning ICUs in the country are Mbarara, Lacor, Gulu and Jinja.

h/t Rosebell’s Blog on Twitter

VOA reports that Britain has joined Ireland in an aid suspension over corruption in the Prime Minister’s office (although apparently the Irish suspension is general, whereas the UK is apparently only suspending aid to that one office):

The money was meant to have been spent on helping the needy, and to help pay for a ‘peace recovery and development program’ in northern Uganda after decades of conflict and devastation.

The Ugandan government has pledged prosecutions. Two senior officials have been charged, while 17 others have been suspended as the investigation continues.

“This report does not surprise anybody,” said Dr. Fred Golooba Mutebi, a political analyst and a visiting fellow at the University of Manchester in the United Kingdom. The only shock, he added, “is the amounts of money stolen are quite colossal.”

"Freedom of expression is your right"

“FREEDOM OF EXPRESSION IS YOUR RIGHT”

Corruption Opportunties . . . [updated]

“Fight Corruption with Social Entrepreneurship”–award/grant competition from the Ashoka Foundation with Transparency International.  Three awards of £5,000 pounds each are available to support innovative initiatives, with submissions due by October 1, 2012.

Speaking of corruption, news today from the United States about Bradley Birkenfeld, possible Anglo Leasing suspect/witness.

Who is Bradley Birkenfeld?  Here is the link to the 2009 Mars Group post “The Bradley Birkenfeld Dossier: Amos Wako: Guess what?  President Obama could solve Anglo Leasing and he has a suspect in custody.”  After Birkenfeld was arrested in the U.S. in 2008, Kenya did request U.S. assistance with Birkenfeld for investigation of Anglo Leasing through a letter to Ambassador Ranneberger in March 2009.  Beyond that the situation is typically muddy as to what has transpired.

Today, the U.S. Internal Revenue Service confirmed that it has paid Birkenfeld $104MM as his “whistleblower” share of recoveries from massive tax fraud at UBS in Switzerland. Here is the Washington Post story.

From Star March 1, 2012:

THE Swiss government has frozen three bank accounts associated with Anglo Leasing suspect Deepak Kamani and opened money laundering charges against him and two Britons.

“The Swiss government has delivered on the requests regarding the money trail of Anglo Leasing suspects as requested by the Kenya government. The Swiss authorities believe that it was a case of money laundering. They also believe that the suspects infringed on the laws of Switzerland. The accounts that have been frozen belong to three individuals. The individuals are among those who set up the financial structure,” said Swiss ambassador Jacques Pitteloud in Nairobi yesterday. The two Britons were not named.

An unconfirmed report says that Kamani-associated companies may have had US$160 million (Sh13.6 billion) in accounts in Geneva with HSBC, Schroders, UBS and Pictet. In 2009 US national Bradley Birkenfeld was sentenced to 40 months for helping clients hide their money in a multibillion dollar international tax fraud over Swiss private banking. Bradley was intimately connected with the Kamani brothers – Deepak and Rashmi – who controlled 13 of the Anglo Leasing companies whose accounts Bradley managed when he worked for UBS.

Bradley’s private residential address was listed as the office of Midlands Finance and Securities Ltd which received 36 irrevocable and negotiable promissory notes worth euros 49.6 million for a sham loan that Kenya never received as part of the Anglo Leasing scam. Bradley also signed one of the 18 Anglo Leasing contracts on behalf of Info Talent to computerise the police force at a cost of $59.7 million (Sh5.1 billion). . . .

So, as of today, Birkenfeld is out of prison but serving the remainder of his sentence for assisting clients evade taxes in home detention in New Hampshire.  He has plenty of money.  His lawyers say they will seek a presidential pardon.  Sounds like a perfect opportunity for the governments of Kenya and the United States to cooperate on obtaining the details of the Anglo Leasing fraud from Birkenfeld and pursuing prosecutions and recovery of funds.

 

Should the U.S. do more about corruption in South Sudan? Are there historical lessons from Kenya?

 

Alan Boswell of the McClatchy papers has an interesting story today, “U.S. not probing allegations of massive South Sudanese corruption”, highlighting a difference of opinion between Senator Leahy and the Administration about how to apply U.S. law on foreign corruption.

Travel bans are one of the few tools available to American officials to fight corruption, and U.S. law requires that they be imposed if the State Department has credible evidence that foreign officials are profiting corruptly from a country’s natural resources. The law allows for exemptions only for travel to the United Nations in New York, though an individual ban can be lifted if the reason for the banning has been corrected.

In June, the South Sudanese government admitted that it’s missing $4 billion in stolen funds, or roughly double its annual revenue since the mostly autonomous administration was established in 2005 as part of a U.S-brokered peace deal that led to South Sudan’s independence last year from Sudan. . . .

Boswell reports that the U.S. is not considering such visa bans and that Presidential Envoy Princeton Lyman has indicated that the U.S. is looking to the South Sudanese to investigate the situation themselves.

“You have to know exactly who you are going to target. It’s not exactly clear who did it,” Lyman said. “We are looking to the Sudanese to do the investigations. President Kiir has promised a vigorous anti-corruption policy and we encourage him in this direction.”

Under American law, foreign officials and their immediate family members who steal from the public treasury or display other significant corruption are ineligible to enter the United States. Sen. Patrick Leahy, D-Vt., the chairman of the state and foreign operations subcommittee and the author of the “anti-kleptocracy” law, said he didn’t think the State Department was doing enough to find out who stole the money.

“If the State Department has such information, we expect the U.S. Embassy to determine if it is credible and to apply the law rigorously,” Leahy said.

The U.S. has known about the scale of South Sudanese corruption for some time. “From early on, I had people who knew the SPLM well citing this problem and very worried about it,” Lyman said.

Lyman said corruption wasn’t unusual in young developing countries. He pointed to the example of Kenya’s first president, Jomo Kenyatta, who was well-known for welcoming gifts and kickbacks as part of official business.”You don’t like to see it happen, but it happens. That doesn’t excuse it,” Lyman said.

Obviously this puts the U.S. in a difficult position because of our “special relationship” with South Sudan, the tremendous other challenges the new country faces, and the ongoing brutality from Khartoum.  At the same time, it can also be argued that we have unique responsibility to address the problem because of our role in facilitating South Sudanese independence and our place on the inside through our support for the new government.

Ambassador Lyman cites Kenyatta, so what are the lessons from Kenya?  Kenyatta’s corruption begat Moi’s, which begat that within the Kibaki administrations.  In the course of fifty years after independence the U.S. and the international community as a whole never found the will to consistently stick to a strong, clear anti-corruption effort in Kenya–there have always been other priorities to intervene.  Yet Kenyatta’s heirs and cronies, and Moi and his partially overlapping set of cronies still literally own an awful lot of Kenya, and have done very well through Kibaki (who was part of the Kenyatta and Moi circles himself for many, many years).  While the press is now free enough to report scandal after scandal after scandal, and write more of the history, the deals are not undone and no one is prosecuted in almost all significant cases old and new.  While there may be some hope for the future from movement toward a more independent judiciary, the track record so far is just plain bad.  The precedent seems risky.

 

Lessons from football–the mote in our eye and remembering that development does not make us better people

This week we learned more ugly truth about child rape in the Penn State University football program and “grand corruption” in FIFA world football.

Sobering stuff.  Obviously we in the “developed West” suffer from the types of grave flaws of character that we campaign against in the rest of the world–the same individual venality and the temptations of “groupthink” and misplaced or pretend loyalties to excuse action.

In the United States there is some broad consensus that the we aspire to some type of moral, as well as economic, leadership in the world.  We don’t always agree on what all the details of that morality should be, but we do step up to the “bully pulpit” from left, right and center, from one U.S.administration and Congress to the next.  Not to suggest that we shouldn’t do this, but if we want to lead we ought to conform our behavior to our professed values.

We talk a bit about the issue of how to connect our military–obviously one primary point of contact with other cultures and countries–with the rest of our society.  I haven’t noticed much discussion about how to do this in the diplomatic area.  Sometimes I have wondered if we ought to require our foreign service to do rotations in the United States (outside Washington) to keep them in current touch with how “the American way” is functioning in our own society.

From my “AfriCommons” perspective, it seems that we Americans are blessed to have inherited an exceptional system of governance that has served us well, but we chose whether to live up to it as we go and are not inherently more deserving than others.  Lets step back to look at ourselves on the Penn State situation — we are talking about a program for “sports” at a “public” institution of higher education.  You know, team sports where we teach our “young people” character and competitive virtue.  As part of our world’s finest system of universities.  Surely we would be appalled by something so twisted at the University of Nairobi or Makerere.  As well we should be.

We just need to remember that we don’t really want everyone else in the world to be TOO much like us; and we certainly do not want to be party to any suggestion that prosperity is a substitute for well functioning institutions in any society.

Oil and Security in Kenya (updated)

Ratio Magazine, “Kenya Oil Find:  Good News?”:

  • Turkana has just become a lot riskier: It is already a marginal, underdeveloped area with relatively high insecurity. If the recent clashes in Isiolo, underreported and often glossed over as inter-ethnic cattle rustling, are anything to go by, similar tensions may well surface in Turkana.
  • Kenya’s land titling and overall land management regime is notoriously corrupt and unreliable and also a perennial source of conflict. This will be worse in Turkana. The implementation of the new constitution with its transition from a central to a more devolved government on country level creates more uncertainty: Not all regulations and institutions have been fully set up. Throw oil, a marginal area and informal land rights into this and you have a potentially explosive situation.
  • Kenya’s political risk: The past few days, with the GEMA meeting putting the country on notice that peace and security may well depend on one individual, are just one of many reminders that the issues that pushed Kenya to the brink of a Cote d’Ivoire style scenario are far from being resolved. Oil tends to increase the premium on power. Thankfully, with production at least five to seven years off, this means that Kenya will have at least one, possibly two electoral cycles until oil revenues start flowing.

The latest from Petroleum Africa: “Africa Oil and Tullow Oil Hit More Kenyan Pay“:

Tullow’s exploration director Angus McCoss, said:”This ongoing wildcat is an excellent start to our exploration campaign. The net pay encountered so far in Ngamia-1 is more than double that encountered in any of our East African exploration wells to date. We now look forward to the drilling and evaluation of the deeper potential of this well and the acceleration of our seismic and drilling campaigns in the region.”

If Raila Odinga wants to be elected the next President of Kenya, he should expect to be evaluated on his performance as Prime Minister

Personally, from everything I knew professionally in “real time” in Kenya during the last presidential campaign and its aftermath, and everything I have learned since, I am of the opinion that Odinga would have been the President but for the manipulation of the vote totals as ultimately reported.  The lack of any actual investigation of this issue is in itself telling.

Nonetheless, no one is entitled to the Presidency of Kenya.  If the election was stolen on behalf of Kibaki it was stolen from the Kenyan voters, not from Raila personally.  It would appear most likely that a plurality but not a majority of votes went to Odinga in 2007.  In supporting the brokering of a “power sharing” deal following the election our Ambassador Ranneberger was fond of saying that Kibaki and Odinga “needed” each other to govern.  My corollary would be that Kenyans did not “need” either of them to govern.  Both Odinga and Kibaki were credible candidates with plausible cases to be made to the voters based on platform, party and past performance–both were also controversial and had disappointed many who had supported them in various instances in the past.  In my mind at the time, from Nairobi, neither seemed as moved as I would have hoped by the suffering associated with the election debacle and the ensuing violence.

I continue to believe that determining what happened last time and why is a necessary part of trying for a better election process next time in Kenya, and a more effective role for the United States in assisting Kenyans toward that better process.   Nonetheless, Kenyans deciding how to cast their vote in 2012 or 2013 should take account of how Raila has used the power, albeit limited, that he ended up with in the current government.

While there is no confusion about who is President in Kenya, under the “Grand Coalition” Prime Minister Odinga is one of a small  second tier of key actors in Kenyan government–not because of a clearly defined role for the Prime Minister as such, but for the combination of his own stature as the apparent winner of the last race and the perceived front runner in the next, his role as head of ODM as still the largest single party, and his role in consensus appointments with Kibaki on behalf of the “Coalition”.

Kenya has a new constitution approved by a successful referendum–finally, after so many years.  The office of Prime Minister rather than being given a clearly defined role is going away.  Raila may have helped to block some bad appointments and to vindicate a better selection process for the judiciary and election officials–he may have also assented to some other bad appointments.   On corruption, Kenyans will need to be asking whether Raila as Prime Minister has accomplished things to advance reform–or whether he has just been talking the talk like other officeholders.  This is one reason why getting to the bottom of the facts of the  management of the “Kazi Kwa Vijana” programs from the Office of the Prime Minister is important.  What does the stewardship of this program say about what Kenyans could expect from Raila as president?  Likewise, if there is no major scandal here, how do his critics justify baying for his head when there are so many major scandals from this government and its predecessors that have not been addressed and accounted for?