Kenya’s legal colonial paradox

In 2007-08 Kenya experienced bloody post-electoral violence that claimed more than 1,300 lives and displaced 600,000 people. The conflict pit against each others the partisans of political formations, including the Kenya African Union (KANU) led by Uhuru Kenyatta, the Orange Democratic Movement (ODM) of Raila Odinga, etc.

President Uhuru Kenyatta
President Uhuru Kenyatta

In the aftermath of the tragedy, the International Criminal Court indicted the winner of the presidential election, Mr. Kenyatta. The charges alleged “crimes against humanity, including murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.” However, faced with the Kenyan authorities refusal to turn over “evidence vital to the case,” the chief prosecutor, Fatou Bensouda, asked the Court to withdraw the case in 2013.  Regardless, Mr. Kenyatta has ever since been resentful about his indictment. As a result, he has spent a great deal of energy, state resources and political pressure to weaken the ICC. First, he ended Kenya’s membership in the court. Then, he lobbied heavily among heads of state and at the African Union’s meetings for a global continental departure from the ICC. It appears though that his efforts were in vain. In an editorial piece, titled “In Africa, Seeking a License to Kill,” Rev. Desmond Tutu rebuked and condemned Mr. Kenyatta’s maneuver.
Low and behold, it turns out that today colonial era laws still deny Kenyan citizens some of their fundamental rights. Such are the facts laid out in Mercy Muendo‘s, article below, titled “Kenyans are still oppressed by archaic colonial laws.”
Upon reading the article, I am more than ever convinced that, instead of waging a loosing anti-ICC crusade —it got even lonelier following The Gambia’s recent return to the court —, Mr. Kenyatta ought to clean up his own yard, first.

Tierno S. Bah


Kenyans are still oppressed by archaic colonial laws

It’s been 54 years since Kenya got her independence and yet there are still a number of archaic, colonial and discriminatory laws on the statute books. From archival research I have done it’s clear that these laws are used to exploit, frustrate and intimidate Kenyans by restricting their right to movement, association and the use of private property.

They also make it difficult for ordinary Kenyans to make a living by imposing steep permit fees on informal businesses.

These laws were inherited from the colonial British government and used to be within the purview of local government municipalities under the Local Government Act. This act was repealed when municipalities were replaced by counties after the promulgation of the 2010 Constitution.

Currently, these laws are contained in county rules and regulations, criminalizing a good number of activities, including making any kind of noise on the streets, committing acts contrary to public decency, washing, repairing or dismantling any vehicle in non-designated areas (unless in an emergency) and loitering aimlessly at night.

The colonial laws served a central purpose – segregation. Africans and Asians could be prosecuted for doing anything that the white settlers deemed to be a breach of public order, public health or security.

Violating human rights

Many of these archaic laws also restrict citizens’ use of shared or public space. Some of them grant the police powers to arrest offenders without warrant, and to prosecute them under the Penal Code.

Offences like the ones mentioned above are classified as petty crimes that can attract fines and prison terms.

Some have argued that these laws are being abused because they restrict freedom of movement and the right to a fair hearing.

A few of them also hinder the growth of the economy. For example, hawking without a permit is against the law. To get a permit, traders must pay steep fees to various government authorities. This requirement is a deterrent to trade and infringes on the social economic rights of citizens.

Another example is the law that makes it a crime to loiter at night. This law was initially put on the books to deter people from soliciting for sexual favours, or visiting unlicensed establishments. It has however become a means for state agents to harass anyone walking on the streets at night.

Genesis of archaic laws

The laws can be traced back to legal ordinances that were passed by the colonial government between 1923 and 1934.

The 1925 Vagrancy (Amendment) Ordinance restricted movement of Africans after 6pm, especially if they did not have a registered address.

Post-independence, the ordinance became the Vagrancy Act, which was repealed in 1997. The Vagrancy Act inspired the Public Order Act, which restricts movement of Africans during the day, but only in the special circumstances that are outlined in the Public Security (Control of Movement) Regulations.

This legislation is similar to the Sundown Town rules under the Jim Crow discrimination law in the United States. A California-posted sign in the 1930s said it all: “Nigger, Don’t Let The Sun Set On YOU In Hawthorne.” — T.S. Bah

The Witchcraft Ordinance of 1925, which formed the basis for the Witchcraft Act, outlawed any practices that were deemed uncivilised by colonial standards. The provisions of the Act are ambiguous and a clear definition of witchcraft is not given. This has made it easy for authorities to prosecute a wide range of cultural practices under the banner of witchcraft.

Rationale behind punitive laws

The idea behind most of the targeted legislation enacted by the colonialists was to separate whites from people of other races, including Asians. For example, in 1929 settlers in the white suburbs of Muthaiga in Nairobi raised an objection when the Governor announced plans to merge their suburban township with greater Nairobi.

That would have meant that they would have had to mingle with locals from Eastleigh and other native townships, which were mostly black. As a caveat to joining the greater Nairobi Township, the Muthaiga Township committee developed standard rules and regulations to govern small townships.

These rules and regulations were applied to other administrative townships such as Mombasa and Eldoret.

White townships would only join larger municipalities if the Muthaiga rules applied across the board.

The Muthaiga rules allowed white townships to control and police public space, which was a clever way to restrict the presence and movement of Asians and Africans in the suburbs.

Variations of these rules remain on the books to date. The current Nairobi county rules and regulations require residents to pay different rates to the county administration depending on their location.

In addition, the county rules demand that dog owners must be licensed, a requirement that limits the number of city dwellers who can own dogs. This rule can be read as discriminatory because the vast majority of lower-income earners now find themselves unable to keep a dog in the city. Indeed, discrimination was the basis of the colonial legal framework.

Can oppressive laws be legal?

Strictly speaking, these discriminatory rules and regulations were unlawful because they were not grounded in statutory or common law. Indeed, they were quasi-criminal and would have been unacceptable in Great Britain.

Ironically, because such rules and regulations didn’t exist in Great Britain, criminal charges could not be brought against white settlers for enforcing them.

To curtail freedom of movement and enjoyment of public space by non-whites the settlers created categories of persons known as “vagrants”, “vagabonds”, “barbarians”, “savages” and “Asians”.

These were the persons targeted by the loitering, noisemaking, defilement of public space, defacing of property, and anti-hawking laws. The penalty for these offences was imprisonment.

Anyone found loitering, anyone who was homeless or found in the wrong abode, making noise on the wrong streets, sleeping in public or hawking superstitious material or paraphernalia would be detained after trial.

Police had the powers to arrest and detain offenders in a concentration camp, detention or rehabilitation center, or prison without a warrant.

This is the same legal framework that was inherited by the independence government and the very same one that has been passed down to the county governments.

The Public Order Act allows police powers to arrest without warrant anyone found in a public gathering, meeting or procession which is likely to breach the peace or cause public disorder. This is the current position under sections 5 and 8 of the Act.

This law, which was used by the colonial government to deter or disband uprisings or rebellions, has been regularly abused in independent Kenya.

At the end of the day Kenyans must ask themselves why successive governments have allowed the oppression of citizens to continue by allowing colonial laws to remain on the books.


The Conversation

In Memoriam D. W. Arnott (1915-2004)

D.W. Arnott. The Nominal and Verbal Systems of Fula
D.W. Arnott. The Nominal and Verbal Systems of Fula

This article creates the webAfriqa homage and tribute to the memory of Professor David W. Arnott (1915-2004), foremost linguist, researcher, teacher and publisher on Pular/Fulfulde, the language of the Fulbe/Halpular of West and Central Africa. It is reproduces the obituary written in 2004 par Philip J. Jaggar. David Arnott belonged in the category of colonial administrators who managed to balance their official duties with in-depth social and cultural investigation of the societies their countries ruled. I publish quite a log of them throughout the webAfriqa Portal: Vieillard, Dieterlen, Delafosse, Person, Francis-Lacroix, Germain, etc.
The plan is to contributed to disseminate as much as possible the intellectual legacy of Arnott’s. Therefore, the links below are just part of the initial batch :

Tierno S. Bah


D. W. Arnott was a distinguished scholar and teacher of West African languages, principally Fulani (also known as Fula, Fulfulde and Pulaar) and Tiv, David Whitehorn Arnott, Africanist: born London 23 June 1915; Lecturer, then Reader, Africa Department, School of Oriental and African Studies 1951-66, Professor of West African Languages 1966-77 (Emeritus); married 1942 Kathleen Coulson (two daughters); died Bedale, North Yorkshire 10 March 2004.

He was one of the last members of a generation of internationally renowned British Africanists/linguists whose early and formative experience of Africa, with its immense and complex variety of peoples and languages, derived from the late colonial era.

Born in London in 1915, the elder son of a Scottish father, Robert, and mother, Nora, David Whitehorn Arnott was educated at Sheringham House School and St Paul’s School in London, before going on to Pembroke College, Cambridge, where he read Classics and won a “half-blue” for water polo. He received his PhD from London University in 1961, writing his dissertation on “The Tense System in Gombe Fula”.

Following graduation in 1939 Arnott joined the Colonial Administrative Service as a district officer in northern Nigeria, where he was posted to Bauchi, Benue and Zaria Provinces, often touring rural areas on a horse or by push bike. His (classical) language background helped him to learn some of the major languages in the area — Fulani, Tiv, and Hausa — and the first two in particular were to become his languages of published scientific investigation.

It was on board ship in a wartime convoy to Cape Town that Arnott met his wife-to-be, Kathleen Coulson, who was at the time a Methodist missionary in Ibadan, Nigeria. They married in Ibadan in 1942, and Kathleen became his constant companion on most of his subsequent postings in Benue and Zaria provinces, together with their two small daughters, Margaret and Rosemary.

From 1951 to 1977, David Arnott was a member of the Africa Department at the School of Oriental and African Studies (Soas), London University, as Lecturer, then Reader, and was appointed Professor of West African Languages in 1966. He spent 1955-56 on research leave in West Africa, conducting a detailed linguistic survey of the many diverse dialects of Fulani, travelling from Nigeria across the southern Saharan edges of Niger, Dahomey (now Benin), Upper Volta, French Sudan (Burkina Faso and Mali), and eventually to Senegal, Gambia, and Guinea. Many of his research notes from this period are deposited in the Soas library (along with other notes, documents and teaching materials relating mainly to Tiv and Hausa poetry and songs).

He was Visiting Professor at University College, Ibadan (1961) and the University of California, Los Angeles (1963), and attended various African language and Unesco congresses in Africa, Europe, and the United States. Between 1970 and 1972 he made a number of visits to Kano, Nigeria, to teach at Abdullahi Bayero College (now Bayero University, Kano), where he also supervised (as Acting Director) the setting up of the Centre for the Study of Nigerian Languages, and I remember a mutual colleague once expressing genuine astonishment that “David never seemed to have made any real enemies”. This was a measure of his integrity, patience and even-handed professionalism, and the high regard in which he was held.

Arnott established his international reputation with his research on Fula(ni), a widely used language of the massive Niger-Congo family which is spoken (as a first language) by an estimated eight million people scattered throughout much of West and Central Africa, from Mauritania and Senegal to Niger, Nigeria, Cameroon, Central African Republic and Chad (as well as the Sudan), many of them nomadic cattle herders.

Between 1956 and 1998 he produced almost 30 (mainly linguistic) publications on Fulani and in 1970 published his magnum opus, The Nominal and Verbal Systems of Fula (an expansion of his PhD dissertation), supplementing earlier works by his predecessors, the leading British and German scholars F.W. Taylor and August Klingenheben. In this major study of the Gombe (north-east Nigeria) dialect, he described, in clear and succinct terms, the complex system of 20 or more so-called “noun classes” (a classificatory system widespread throughout the Niger-Congo family which marks singular/plural pairs, often distinguishing humans, animals, plants, mass nouns and liquids). The book also advanced our understanding of the (verbal) tense- aspect and conjugational system of Fulani. His published research encompassed, too, Fulani literature and music.

In addition to Fulani, Arnott also worked on Tiv, another Niger-Congo language mainly spoken in east/central Nigeria, and from the late 1950s onwards he wrote more than 10 articles, including several innovative treatments of Tiv tone and verbal conjugations, in addition to a paper comparing the noun-class systems of Fulani and Tiv (“Some Reflections on the Content of Individual Classes in Fula and Tiv”, La Classification Nominale dans les Langues Négro-Africaines, 1967). Some of his carefully transcribed Tiv data and insightful analyses were subsequently used by theoretical linguists following the generative (“autosegmental”) approach to sound systems. (His colleague at Soas the renowned Africanist R.C. Abraham had already published grammars and a dictionary of Tiv in the 1930s and 1940s.)

In addition to Fulani and Tiv, Arnott taught undergraduate Hausa-language classes at Soas for many years, together with F.W. (“Freddie”) Parsons, the pre-eminent Hausa scholar of his era, and Jack Carnochan and Courtenay Gidley. He also pioneered the academic study of Hausa poetry at Soas, publishing several articles on the subject, and encouraged the establishment of an academic pathway in African oral literature.

The early 1960s were a time when the available language-teaching materials were relatively sparse (we had basically to make do with cyclostyled handouts), but he overcame these resource problems by organising class lessons with great care and attention, displaying a welcome ability to synthesise and explain language facts and patterns in a simple and coherent manner. He supervised a number of PhD dissertations on West African languages (and literature), including the first linguistic study of the Hausa language written by a native Hausa speaker, M.K.M. Galadanci (1969). He was genuinely liked and admired by his students.

David Arnott was a quiet man of deep faith who was devoted to his family. Following his retirement he and Kathleen moved to Moffat in Dumfriesshire (his father had been born in the county). In 1992 they moved again, to Bedale in North Yorkshire (where he joined the local church and golf club), in order to be nearer to their two daughters, and grandchildren.

Philip J. Jaggar
The Independent

Slavery: Carson, Trump, and the Misuse of American History

Dr. Ben Carson, Secretary, Housing and Urban Development
Dr. Ben Carson, Secretary, Housing and Urban Development

I am re-posting here Jelani Cobb’s article (The New Yorker) written around the blunder of Housing and Urban Development Secretary, Dr. Ben Carson, whereby he compared African slaves to immigrants. This is the same person who, out of the blue, claimed in 2013 that: “Obamacare is really … the worst thing that has happened in this nation since slavery.” The +20 million people who got insurance thanks to the Affordable Care Act (aka Obamacare) would beg to differ.
Anyhow, Dr. Carson will, most likely, not become president of the United States. The world will thus be probably a better place. Because despite his  acknowledged skills as a neurosurgeon, Carson is a mediocre student of history. Should he want to remedy that self-inflicted intellectual handicap, he would have to rethink slavery. And first of all, he must admit that the Slave Trade is “America’s Original Sin.” Consequently, it was not some migratory itch or urge that uprooted millions of Africans and dumped them on the shores of the “New World.” On the contrary, they were taken out and across the Atlantic Ocean in chains. Upon landing, and as Edward E. Baptist put it best, they toiled, from dawn to dusk and in sweat, tears and blood, for the “Making of American Capitalism.”

Tierno S. Bah


In referring to slaves as “immigrants,” Ben Carson followed a long-standing American tradition of eliding the ugliness that is part of the country’s history.

Earlier this week, Ben Carson, the somnolent surgeon dispatched to oversee the Department of Housing and Urban Development on behalf of the Trump Administration, created a stir when he referred to enslaved black people—stolen, trafficked, and sold into that status—as “immigrants” and spoke of their dreams for their children and grandchildren. In the ensuing hail of criticism, Carson doubled down, saying that it was possible for someone to be an involuntary immigrant. Carson’s defenses centered upon strict adherence to the definition of the word “immigrant” as a person who leaves one country to take up residence in another. This is roughly akin to arguing that it is technically possible to refer to a kidnapping victim as a “house guest,” presuming the latter term refers to a temporary visitor to one’s home. Carson had already displayed a propensity for gaffes during his maladroit Presidential candidacy, and it might be easy to dismiss his latest one as the least concerning element of having a neurosurgeon with no relevant experience in charge of housing policy were it not a stand-in for a broader set of concerns about the Trump Administration.

A week earlier, Betsy DeVos, the Secretary of Education, had described historically black colleges and universities as pioneers in school choice—a view that can only co-exist with reality if we airbrush segregation into a kind of level playing field in which ex-slaves opted to attend all-black institutions rather than being driven to them as a result of efforts to preserve the supposed sanctity of white ones. The Trump Administration is not alone in proffering this rosy view of American racial history. Last week, in a story about changes being made at Thomas Jefferson‘s estate, Monticello, the Washington Post referred to Sally Hemings, the enslaved black woman who bore several of Jefferson’s children, as his “mistress”—a term that implies far more autonomy and consent than is possible when a woman is a man’s legal property. Last fall, the textbook publisher McGraw-Hill faced criticism for a section of a history book that stated, “The Atlantic Slave Trade between the 1500s and 1800s brought millions of workers from Africa to the southern United States to work on agricultural plantations.” The word “worker” typically carries the connotation of remuneration rather than lifelong forced labor and chattel slavery.

One part of the issue here is the eliding of the ugliness of the slave past in this country. This phenomenon is neither novel nor particularly surprising. The unwillingness to confront this narrative is tied not simply to the miasma of race but to something more subtle and, in the current atmosphere, more potentially treacherous: the reluctance to countenance anything that runs contrary to the habitual optimism and self-anointed sense of the exceptionalism of American life. It is this state-sanctioned sunniness from which the view of the present as a middle ground between an admirable past and a halcyon future springs. But the only way to sustain that sort of optimism is by not looking too closely at the past. And thus the past can serve only as an imperfect guide to the troubles of the present.

In his 1948 essay “The Gangster as Tragic Hero,” Robert Warshow wrote about the mid-century efforts to pressure studios to stop producing their profitable gangster movies. The concerns focussed partly upon the violence of the films but more directly upon the fear that these films offered a fundamentally pessimistic view of life and were therefore un-American. There is a neat through-line from those critics to Ronald Reagan’s “Morning in America” idealism to the shopworn rhetoric of nearly every aspirant to even local public office that the nation’s “best days are ahead of us.” We are largely adherents of the state religion of optimism—and not of a particularly mature version of it, either. This was part of the reason Donald Trump’s sermons of doom were seen as so discordant throughout last year’s campaign. He offered followers a diet of catastrophe, all of it looming immediately if not already under way. He told an entire nation, in the most transparently demagogic of his statements, that he was the only one who could save it from imminent peril. And he was nonetheless elected President of the United States.

Strangely enough, many of us opted to respond to Trump’s weapons-grade pessimism in the most optimistic way possible, conjuring best-case scenarios in which he would simply be a modern version of Richard Nixon, or perhaps of Andrew Jackson. But he is neither of these. Last summer, as his rallies tipped toward violence and the rhetoric seemed increasingly jarring, it was common to hear alarmed commentators speak of us all being in “uncharted waters.” This was naïve, and, often enough, self-serving. For many of us, particularly those who reckon with the history of race, the true fear was not that we were on some unmapped terrain but that we were passing landmarks that were disconcertingly familiar. In response to the increasingly authoritarian tones of the executive branch, we plumbed the history of Europe in the twentieth century for clues and turned to the writings of Czeslaw Milosz and George Orwell. We might well have turned to the writings of W. E. B. Du Bois and James Baldwin for the more direct, domestic version of this question but looked abroad, at least in part, as a result of our tacit consensus that tragedy is a foreign locale. It has been selectively forgotten that traits of authoritarianism neatly overlap with traits of racism visible in the recent American past.

The habitual tendency to excise the most tragic elements of history creates a void in our collective understanding of what has happened in the past and, therefore, our understanding of the potential for tragedy in the present. In 1935, when Sinclair Lewis wrote “It Can’t Happen Here,” it already was happening here, and had been since the end of Reconstruction. In 1942, the N.A.A.C.P. declared a “Double V” campaign—an attempt to defeat Fascism abroad and its domestic corollary of American racism.

Similarly, it was common in the days immediately following September 11th to hear it referred to as the nation’s first large-scale experience with terrorism—or at least the worst since the 1995 Oklahoma City bombing, staged by Timothy McVeigh. But the nation’s first anti-terrorism law was the Ku Klux Klan Act of 1871, designed to stall the attempts to terrorize emancipated slaves out of political participation. McVeigh’s bombing, which claimed the lives of a hundred and sixty-eight people, was not the worst act of terrorism in the United States at that point—it was not even the worst act of terrorism in the history of Oklahoma. Seventy-four years earlier, in what became known as the Tulsa Race Riot, the city’s black population was attacked and aerially bombed; at least three hundred people were killed. Such myopia thrives in the present and confounds the reasoning of the director of the FBI, James Comey, who refused to declare Dylann Roof’s murder of nine black congregants in a South Carolina church, done in hopes of sparking a race war, as an act of terrorism—a designation he did not withhold from Omar Mateen’s murderous actions in the Pulse night club, in Orlando.

The American capacity for tragedy is much broader and far more robust than Americans—most of us, anyway—recognize. Our sense of ourselves as exceptional, of our country as a place where we habitually avert the worst-case scenario, is therefore a profound liability in times like the present. The result is a failure to recognize the parameters of human behavior and, consequently, the signs of danger as they become apparent to others who are not crippled by such optimism. A belief that we are exempt from the true horrors of human behavior and the accompanying false sense of security have led to nearly risible responses to Trumpism.

It has become a cliché of each February to present the argument that “black history is American history,” yet that shopworn ideal has new relevance. A society with a fuller sense of history and its own capacity for tragedy would have spotted Trump’s zero-sum hustle from many miles in the distance. Without it, though, it’s easy to mistake the overblown tribulations he sold his followers for candor, not a con. The sense of history as a chart of increasing bounties enabled tremendous progress but has left Americans—most of us, anyway—uniquely unsuited to look at ourselves as we truly are and at history for what it is. Our failure to reckon with this past and the centrality of race within it has led us to broadly mistake the clichés of history for novelties of current events.

Jelani Cobb
The New Yorker

Simandou. The bribery saga reaches new peaks

Lurid bribery revelations led the government of Guinea to confiscate world-beating iron ore reserves from junior mining company BSG Resources in 2014. So when bitter rival Rio Tinto, owner of a neighbouring concession, detonated a scandal over its own secretive payments, BSGR boss Beny Steinmetz was cock-a-hoop.

Beny Steinmetz, BSGR
Beny Steinmetz, BSGR

Developments in this sordid tale have kept the mining world agog. The concessions high in West Africa’s Simandou Mountains have yet to deliver a single tonne of ore but continues to yield an unending stream of dirt—and to provide object lessons to an industry with a sorry history of dodgy deals.

Details of Rio’s relationship with François Polge de Combret, a French banker and university friend of Guinea’s president have been explosive—and have already cost two top executives their jobs [paywall]. They prove the Guinean government singled BSGR out unfairly, says Beny Steinmetz, the billionaire diamond magnate behind the company.

“It’s a big conspiracy against us,” said Steinmetz, who is under criminal investigation in at least three countries over the Guinea bribery. “They tried to paint themselves as nice and clean but they never wanted to develop one tonne of iron ore. We are the good guys.”

François de Combret
François de Combret

But emails and court testimony seen by Global Witness show it wasn’t just Rio tangling with de Combret: BSGR had its own relationship with the president’s confidant—a potentially lucrative arrangement for the banker had he succeeded in helping Steinmetz retain the asset.

Global Witness first exposed BSGR’s Guinea imbroglio in 2012. The latest revelations are a reminder that no one has come well out of the Simandou saga—least of all the Guinean people, whose country clings obstinately to the bottom end of almost every development index despite the untold riches beneath its soil.

But let’s start at the beginning.

Rio had been sitting on Simandou for over a decade. The colossal ore trove promised to be a game-changer in the global market. But Simandou is remote and mountainous, and Guinea’s infrastructure is poor. For Rio, conditions were never quite right and as the Simandou project languished, Guinean frustration mounted.

In July 2008, matters came to a head. The government abruptly cancelled half of Rio’s Simandou rights, handing them to BSGR. Steinmetz’s relative inexperience with big mining projects didn’t prevent him from cashing in: within 18 months BSGR had sold 51 per cent of its holding to Brazilian mining giant Vale for $2.5 billion—twice Guinea’s entire budget at the time.

Only later did it emerge that there was more to the deal than simply getting a stalled project off the buffers. In 2013 Global Witness revealed a massive bribery scheme: BSGR had signed contracts promising one of the wives of Guinea’s ailing dictator, Lansana Conte, millions for her influence to get the mine. The following year, the newly elected democratic government stripped BSGR of its rights after an inquiry. Authorities in Israel, Switzerland and the US have launched criminal investigations.

Meanwhile, Rio had its own problems. The Anglo-Australian company was still dragging its feet in developing its remaining half of Simandou and by mid-2011 the Guinean government was threatening to take that too. It took months of talks, promises to build a port and a railway, $700 million and – according to the leaked emails – the services of François Polge de Combret for Rio to keep a grip on its Guinean assets.

Guinean authorities have raised concerns that Rio may have been paying de Combret to secretly fight its corner while he was advising the government. “It raises both legal and ethical concerns if, as media reports suggest, Mr de Combret was passing on privileged information in return for large amounts of money,” said Guinea’s mining minister. “Mr de Combret was at the time acting in a capacity that would have given him access to highly confidential information.”

De Combret didn’t come cheap: Rio negotiated his fee down to $10.5 million. With billions at stake, it seemed a bargain.

“I accept that this is a lot of money, but I also put forward that the result we achieved was significantly improved by Francois’ contribution and his very unique and unreplaceable services and closeness to the President,” wrote Rio’s head of energy and minerals Alan Davies in a May 2011 email to other executives. When that email and others were leaked online, Davies and Rio legal chief Deborah Valentine got fired.

Joy in the Steinmetz camp. “We have been fighting very powerful forces,” the billionaire told Bloomberg in a rare interview. “We all knew justice would prevail. I feel vindicated.”

Not so fast.

If Rio was in dodgy territory with de Combret, BSGR wasn’t far behind. An 11 April 2012 email seen by Global Witness suggests Steinmetz’s company had an almost identical arrangement with the French middleman. By this time BSGR was fighting off the Guinean government’s corruption inquiry. BSGR knew that a finding against it could lead to the confiscation of its blocks.

“Dear Francois,” wrote a mutual friend of de Combret and BSGR agent Frederic Cilins, who later served time in a US prison for his role in the Simandou bribery. “A matter has just been brought to my attention regarding iron ore in the area of Simandou. I don’t know the details but apparently this zone has been the subject of negotiations and of a contract with the Israeli group BSGR.”
“It seems that you know this dossier well,” the friend wrote. “Would you accept to speak with the person who brought BSGR into Guinea? The man in question is Frederic Cilins.”
“I’ll have to ask the authorisation of the President,” replied de Combret in a message forwarded to Cilins.

On November 18 2012, de Combret sent Cilins from his iPad the outlines of a hypothetical agreement to end Steinmetz’s dispute with Guinea: BSGR would hand back its 49% stake in its two  Simandou blocks, while the proceeds from selling the remaining 51% to Vale would be split between BSGR and the government. De Combret then helped arrange a meeting between Guinea, BSGR and Vale “to discuss an amicable settlement”, arbitration documents show.

Through de Combret, BSGR was “trying to explore whether a settlement with President Conde would be possible”, Steinmetz told the arbitration hearing in an affidavit. Had “efforts through M. de Combret led to the project getting back on track I would have advised BSGR to pay a fee. It would have been a very valuable contribution.”

The settlement drawn up by de Combret never materialised. In December 2016, Steinmetz was arrested in Israel over Simandou bribery payments (he was released on bail with a travel ban, though arrangements were made to fly him to Geneva for questioning by Swiss prosecutors).

Rio, for its part, took the drastic step of reporting itself to authorities in three countries, with a warning to investors that the de Combret affair “could ultimately expose the group to material financial cost”. Davies has said “there are no grounds for the termination of my employment”.

So far there have been no winners in the battle over Simandou. But in the case of BSGR, anti-corruption agencies have shown they can collaborate globally to tackle the bribery that drains billions from the world’s poorest countries.

Similar scrutiny of Rio’s payments would send a clear message to the biggest beasts of the mining world that it is time for the old ways to change.

Danie Balint-Kurt
Global Witness

Gambia, Och-Ziff, Guinea, Niger, Chad, RDC

Former president Yahya Jammeh departs Banjul, Jan. 21
Former president Yahya Jammeh departs Banjul, Jan. 21

President Alpha Condé stepped  in the Gambian post-electoral crisis at the last minute. He and Mauritanian president “convinced” former president Yahya Jammeh to yield to President Adama Barrow  and head into exile.
In Conakry, people quickly credited President Condé, deeming it a foreign policy victory. Unfortunately, they have little to say in support of their allegation.  Actually, Yahya was caught between a rock and a hard place. On one hand, he had long lost credibility and now the vote of the majority of citizens. On the other, and if it came to that, ECOWAS military forces were determined to remove Mr. Jammeh from the presidential palace.

It appears now that all Jammeh wanted was to keep his stolen money and ill-gotten luxury goods. He has amassed immense personal wealth at the expense of the Gambian people.

Tactically though, ECOWAS agreed to last minute negotiations that involved General Idriss Déby Itno, president of Chad since 1990, who offered a freight plane to transport Yahya cherished possessions to Malabo.
Once that deal was sealed, Jammeh, escorted by Alpha Condé, flew out of Banjul into exile in Equatorial Guinea.

Mindful of Jammeh’s post-electoral illegitimacy and greedy bargaining, African presidents simply acknowledged his departure. They did not celebrate the event, nor did they use it as a domestic politics scoring game. Only Alpha Condé and his cronies  resorted to such gimmicks and nonsense.

A case in point, President has appointed Tibou Kamara —Yahya Jammeh brother-in-law— as one of his many counselors, an empty title due to the lack of functions. Yesterday, political enemies, the two men are now allies. The pair has come to realize that the same personal and sterile ambition drives them. Birds of the same feathers flock together.

Anyhow, there are lessons to be learned from African dictators’ fall from grace. In 2014, it was the popular insurrection against Blaise Compaoré in Burkina Faso. And now, after a stunning electoral defeat, Yahya Jammeh reneged and tried to hang on to power. ECOWAS, the AU and the UN would have none of it.

Mr. Condé has been dogged lately by revelations about his own suspicious wheeling and dealing in the Simandou  corruption scandal.

A federal court in Brooklyn has charged Michael Cohen and Vanja Baros, executives of Hedge Fund giant Och-Ziff, for violating the Foreign Corrupt Practices Act. In 2010 Och-Ziff wired millions of dollars to the Swiss bank account of a French lobbyist, and former adviser to President Condé.
That payment has been linked to other Och-Ziff corruption allegations in Niger, Chad  and the DRC. Will Alpha Condé face a political fallout and judicial implications for his financial schemes?

Time will tell.

Meanwhile, just like Blaise and Yahya before hime, Alpha should remember this: “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.” (Abraham Lincoln)

Tierno S. Bah


Hedge Fund Execs Charged in Multi-Million Dollar Bribery Scheme

U.S. securities regulators on Thursday accused two former executives at hedge fund Och-Ziff Capital Management of masterminding a far-reaching scheme to pay tens of millions of dollars in bribes to African officials.

In a lawsuit filed in federal court in Brooklyn, the U.S. Securities and Exchange Commission accused Michael Cohen, who headed Och-Ziff’s European office, and Vanja Baros, a former analyst, of violating the Foreign Corrupt Practices Act.

The lawsuit came after Och-Ziff agreed in September to pay $412 million to resolve U.S. investigations relating to the hedge fund’s role in bribing officials in several African countries.

That settlement led to a subsidiary of Och-Ziff pleading guilty to participating in a scheme to bribe officials in the Democratic Republic of Congo, in what prosecutors said marked the first U.S. foreign bribery case against a hedge fund.

In its lawsuit, the SEC said Cohen, 45, and Baros, 44, from 2007 to 2012 caused bribes to be paid to officials in Libya, Chad, Niger, Guinea, and the Democratic Republic of the Congo through agents, intermediaries, and business partners.

Those bribes were paid to secure a $300 million investment from the Libyan Investment Authority sovereign wealth fund; an investment in a Libyan real estate development project; and to secure mining deals, the SEC said.

Ronald White, a lawyer Cohen, said in a statement he “has done nothing wrong and is confident that when all the evidence is presented, it will be shown that the SEC’s civil charges are baseless.”

A lawyer for Baros did not immediately respond to requests for comment. An Och-Ziff spokesman declined to comment.

In settling in September, Och-Ziff entered a deferred prosecution agreement, in which charges related to conduct in several countries would be dropped after three years if it followed the deal’s terms.

Och-Ziff CEO Daniel Och meanwhile agreed with the SEC to pay $2.17 million, and the commission also settled with the company’s chief financial officer.

To date, only one individual has been criminally charged in connection with the probe, Samuel Mebiame, a son of the late former Gabon Prime Minister Leon Mebiame who prosecutors say acted as a “fixer” for a joint-venture involving Och-Ziff.

In December, Mebiame pleaded guilty to conspiring to violate the Foreign Corrupt Practices Act, admitting he schemed to provide “improper benefits” to officials in African countries such as Guinea in exchange for obtaining business opportunities.

Reuters