TUESDAY FEBRUARY 19 2019
The alleged mastermind of the 'chicken' gate scandal Mr Trevy Oyombra hides his face as journalists try to photograph him on February 23, 2016 when he was at the Integrity Centre for questioning by EACC detectives. PHOTO | EVANS HABIL | NATION MEDIA GROUP
Millionaire British printing firm owner Nicholas Smith, found guilty in 2015 of bribing Kenyan bureaucrats and tenderpreneurs to win multimillion-shilling contracts, has finally walked out of prison after completing a three-year sentence, but his accomplices in Nairobi are still walking free, thanks to a snail-pace justice system.
Mr Smith, convicted of giving millions of shillings in kickbacks to officials at the then Interim Independent Electoral Commission (IIEC) and the Kenya National Examination Council (Knec) in order to win tenders for ballot and exam papers, respectively, became the poster boy for the “Chickengate” scandal that tainted electoral management practices — and the careers of officials — in the country.
SERIOUS CRIMES
The scandal was named Chickengate because, in many of the printing contracts negotiations, the kickbacks were referred to in e-mail exchanges as “chicken”.
Besides serving his three-year term, the Briton paid £93,693 (Sh12 million) in fines and legal bills.
Meanwhile, Kenyan authorities are still struggling to pursue criminal charges against three individuals that the Briton allegedly paid bribes to.
It was not clear whether UK’s Serious Fraud Office (SFO), which unearthed the scandal, had given the incriminating evidence to Kenyan officials. An SFO official told the Nation that it does not track the status of convicted defendants.
“I will speak to the case team about whether any documents were provided to the Kenyan authorities,” said the source. “However, due to the age of the case, I may not be able to assist.”
During Mr Smith’s trial, closely watched by Kenyan officials, the SFO tabled a 65-page affidavit and hired celebrated lawyer Mark Bryant-Heron as its prosecutor.
Mr Smith’s release came one week after a Milimani chief magistrate’s court heard a criminal case against former Independent Electoral and Boundaries Commission and IIEC CEO James Oswago, Smith&Ouzman’s local agent Trevy James Oyombra, and his associate Hamida Ali Kibwana.
The trial of Mr Oswago, Mr Oyombra and Ms Kibwana is among several others that are dragging on in Nairobi courts.
CONTRACTS
Shortly after the Britons were found guilty, Kenya received Sh52 million from the UK government in 2017, recovered from the Smiths, indicating that the matter had been concluded. President Uhuru Kenyatta used the money to buy seven ambulances for Laikipia, Wajir, West Pokot, Kitui, Elgeyo-Marakwet and Nairobi counties.
Before Mr Smith’s three Kenyan accomplices were charged, then Director of Public Prosecutions Keriako Tobiko claimed that the evidence from UK authorities was not sufficient to prove they had received — and, in the case of Mr Oyombra, distributed — hefty bribes to tilt contract awards.
Still, the Chickengate scandal caused a buzz in the UK after Smith&Ouzman became the first corporate entity to be convicted in the country for offering bribes to foreign governments in return for lucrative business contracts.
Mr Smith was convicted in 2015 after being found guilty of paying Kenyan, Ghanian, Mauritanian and Somaliland officials £413,552 (about Sh60 million) to get security printing contracts.
His father, Mr Christopher Smith, received an 18-month suspended sentence, which means he was spared jail time. He, however, was slapped with fines and £79,500 (Sh10.2 million) in legal fees. Both father and son paid their respective fines and fees in full.
Smith&Ouzman was also ordered to pay £2.225 million (Sh287.2million) in fines and legal bills. The firm paid legal bills worth Sh3.2 million and Sh113.6 million in fines. It is paying the balance in instalments.
EVIDENCE
In Kenya, Mr Smith was accused of ferrying Sh66 million to IIEC officials between June 2009 and October 2010, with Mr Oyombra and Ms Hamida playing various middleman roles.
Mr Oyombra has been charged with soliciting and distributing the Sh66 million to a number of IIEC officials to ensure that Smith&Ouzman got printing contracts for ballot papers used in the Shinyalu, Bomachoge, Matuga, and South Mugirango by-elections between 2009 and 2010, and the 2010 referendum.
Some of the money was also used to influence officials to award the firm contracts for the printing of the 2009-2010 voter ID forms, hot seal electors and card pouches, and civic by-election papers.
Interestingly, Mr Oswago is the only public official charged with receiving a bribe — Sh2 million — to ensure that Smith& Ouzman printed ballot papers for the 2010 referendum that gave birth to Kenya’s current Constitution.
Detectives and prosecutors believe Mr Oswago received the money through his associate, Ms Kibwana, who was allegedly paid Sh230,000 as the receiving proxy for the former electoral official.
While Mr Oyombra has been accused of distributing the Sh66 million to public officials, it appears the recipients may never appear in court as Kenyan authorities play the lack-of-evidence card.
All three have denied soliciting or receiving any money to influence contract award decisions.
Last month, Chief Magistrate Lawrence Mugambi revised Ms Kibwana’s bail terms after she skipped a hearing. Mr Mugambi increased Ms Kibwana’s bail to Sh5 million and ordered that she also provide a surety of the same amount.
KICKBACKS
The magistrate had warned Ms Kibwana against skipping hearings without court permission in January last year, and hence ruled that the bail revision was a fitting punishment.
But High Court judge Hedwig Ong’udi reversed Mr Mugambi’s decision after finding that the DPP’s office did not oppose going back to the original Sh600,000 cash bail arrangement.
“I am sure she has learnt her lesson for the three days that she has been in custody,” Justice Ong’udi said in her ruling.
Mr Oswago is also out on Sh600,000 cash bail, while Mr Oyombra was released after paying Sh1 million cash bail.
Evidence tabled during the trial in London claims that IIEC officials who took part in the scam included former IEBC chair Ahmed Issack Hassan, former Energy minister Davis Chirchir, Uasin Gishu Woman Rep Gladys Boss Shollei — who served as Mr Oswago’s deputy — lawyer Kennedy Nyaundi, Mr Kenneth Karani, and former elections commissioner Joseph Khamis Dena.
At Knec, Makueni County Secretary Paul Wasanga, who was CEO, his deputy Mwai Nyaga, ICT manager Geoffrey Gitogo, computer manager Ephraim Wanderi, and principal supplies officer Michael Ndua were alleged to have received kickbacks from Smith&Ouzman through Mr Oyombra.
London prosecutors claimed that Mr Wasanga received Sh700,000 per year from Smith&Ouzman through Mr Oyombra to influence printing tenders at Knec, while Mr Mwai, Mr Gitogo, Mr Wanderi and Mr Ndua allegedly received Sh90,000 each, also through Mr Oyombra.
DEFAMATION
The former IIEC and Knec officials were interrogated by Directorate of Criminal Investigations detectives before being released for lack of evidence. They have since maintained their innocence.
The bribery allegations were unravelled in several email exchanges between Smith&Ouzman and Mr Oyombra, during which the Kenyan broker allegedly negotiated facilitation fees and delivered mutually agreed money to public officials.
The scandal has also produced what is likely to be a precedent-setting defamation case, as Mr Nyaundi wants a Milimani court to find that Mr Oyombra damaged his name through the email exchanges with Smith&Ouzman’s owners.
Britain’s SFO has, since the Anglo Leasing scandal of the 1990s — revealed by a whistle-blower in 2002 — kept close tabs on UK firms doing business in Kenya. The IIEC and Knec investigations started in October 2010 and lasted three years.
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