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

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

Index de Corruption 2016. Guinée 142è sur 176

Indice mondial de corruption 2016 (Transparency International)
Indice mondial de corruption 2016 (Transparency International)

Intitulé Index de Perceptions de Corruption, le rapport de Transparency International pour 2016 classe la Guinée au 142è rang sur les 176 pays étudiés.

L’index reflète un barème de classement allant de 0 (très corrompu) à 100 (très propre). Transparency International note que le score moyen est  43, c’est-à-dire en dessous de la moyenne. Et l’organisation admet la nature endémique de la corruption dans le secteur public.

La coloration de la carte ci-dessus s’interprète comme suit :

  • Jaune : Pays mieux performants
  • Orange: Pays moyennement performants
  • Rouge : Pays sous-performants, dont la Guinée

Les citoyens des pays Orange et Jaune sont confrontés au quotidien à l’impact tangible de la corruption sur leur vie.

Corruption Perceptions Index 2016 (Transparency International)
Corruption Perceptions Index 2016 (Transparency International)

Tierno S. Bah

Corruption. Alpha Condé, Rio Tinto and Simandou

Alan Davies, Rio Tinto
Alan Davies, Rio Tinto

The Simandou iron ore project continues to make headlines for accusations of corruption in the adjudication of mining licenses. A Rio Tinto executive, Alan Davies, is the latest shoe to drop. It was reported today that he has been suspended for his role in a bribery scheme that took place in 2011. The alleged fraudulent transaction happened thus  during president Alpha Condé‘s first year in office following his inauguration in December 2010. The article below names the main companies involved then in the Simandou project. It does not, however, indicate who received the  alleged $10.5m  payment. But Mediapart.fr reveals that it was François de Combret, and adviser to president Conde, a former deputy secretary general of the Elysée Palace, and an ex-associate of Lazard Bank.
Rio Tinto (Australia), Vale (Brazil), BSG Resources and Chinalco (Hong-Kong) had each a stake in the Simandou. The first three have been either forced out or decided to withdraw from the project, leaving Chinalco as the only current investor.

Tierno S. Bah


François de Combret
François de Combret

Global mining giant Rio Tinto has been plunged into a bribery scandal after discovering multimillion-dollar payments to a contractor relating to a project in Guinea, West Africa.

The FTSE 100 company has suspended Alan Davies, the executive in charge of its energy and minerals division, with immediate effect, as it investigates payments of $10.5m made to a consultant in relation to its giant Simandou iron ore project.

Mr Davies allegedly had accountability for Simandou in 2011, when the transactions were apparently made.

Rio said it became aware of email correspondence relating to the payments in August this year. Yesterday it notified the authorities in the UK and the US and “is in the process of contacting the Australian authorities”.

Debra Valentine, the executive in charge of Rio’s legal and regulatory affairs, has also stepped down from her role. She had previously notified the company of her intention to retire in May next year.

“Rio Tinto intends to co-operate fully with any subsequent inquiries from all of the relevant authorities,” the company said. “Further comment at this time is therefore not appropriate.”

Mr Davies, who is also a non-executive director at Rolls-Royce, only took charge of Rio’s energy and mineral group in July, in a broader restructuring implemented by new chief executive Jean-Sebastian Jacques when he took on the top job.

One of Mr Jacques’ first major decisions was to cancel development of the long-gestating $20bn Simandou project after deciding that low iron ore prices made the mine nonviable. The decision outraged the Guinea government, which had been banking on Simandou to provide a much-needed boost; the mine had been tipped to double the size of the country’s economy.

Last month Rio sold its 46.6pc stake in Simandou to Chinalco, a mining company listed in Hong Kong, for up to $1.3bn.

Simandou has long been dogged with controversy. It is believed to be one of the biggest undeveloped high-grade iron ore deposits in the world, but its inland location makes building the infrastructure to tap it hugely expensive. Iron ore is the key ingredient in steel.

Rio bought the concession 15 years ago, but lost the rights to half the lode in 2008, when the Guinea government transferred them to BSG Resources, owned by Israeli billionaire Beny Steinmetz.

The deal raised eyebrows not just for the relatively small amount that BSGR had invested in Simandou, but for the fact that company was a specialist in diamond, rather than iron ore, mining. BSGR subsequently sold half its stake to Brazilian giant Vale for an initial $500m, but both companies were ejected from Simandou after a two-year inquiry in Guinea found that BSGR had used bribery to gain the rights to the mine.

In 2014, Rio sued BSGR and Vale in the US, alleging they had conspired to misappropriate Rio’s half of the deposit in 2008. The case — which included claims that BSGR had given Guinea’s minister of mines a diamond-encrusted Ferrari — was dismissed last year after the judge ruled it had fallen foul of the statute of limitations. Both BSG and Vale denied any wrongdoing.

Analysts at Investec said the announcement it was a “surprise” given that Mr Davies had been touted as a potential CEO prior to Mr Jacques’ appointment. “While we do not expect this to have any impact on operations, it does cast a negative cloud over a company that considers itself above any such indiscretions. That said the company appears to be addressing this firmly.”

Rio Tinto’s shares were up 5.5pc amid a general rally in the mining sector following Donald Trump‘s US election victory.

Jon Yeomans
The Telegraph