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WHO IS THIS MAN, OMAR AL BASHIR, THAT SOME KENYAN GOVERNMENT OFFICIALS ARE SO DESPERATELY DEFENDING?

On November 5th 2009, Kenya’s President Mwai Kibaki and Prime Minister Raila Odinga issued a statement which officially committed themselves and the Government of Kenya to cooperate with the International Criminal Court domestically and internationally.  They categorically stated: the Government remains committed to cooperate with ICC within the framework of the Rome Statute and the International Crimes Act.”

The extension by the Government of Kenya to invite Omar Al Bashir, an International Criminal Court indictee, renders the commitments by the two principals doubtful.  To his credit the Prime Minister Raila Odinga has publicly disavowed knowledge of the Omar Al Bashir invitation, but senior members of his Government, and some from his own political party, are shamelessly justifying Omar Al Bashir’s presence at the Promulgation Ceremony for the Constitution of Kenya last Friday.  President Kibaki has not only remained silent, he has left the country for a COMESA meeting in Swaziland.

Some African Heads of State are clearly sympathetic to Al Bashir, and are determined to try and shield him from justice at The Hague.  But truth be told if their citizens knew what kind of person Omar Al Bashir is, and what he has been charged with, their citizens would not back them; just as Kenyan citizens have refused to support Kibaki’s invitation to Omar Al Bashir.

WHY OMAR AL BASHIR IS AN INTERNATIONAL FUGITIVE FROM JUSTICE

Put simply, Omar Al Bashir has been charged with a deliberate crime against his own citizens from the Fur, Masalit and Zaghawa groups.

The warrants of arrest for Al Bashir lists Ten Criminal Charges against him on the basis of his individual criminal responsibility under article 25(3)(a) of the Rome Statute as an indirect (co) perpetrator including:

Five counts of crimes against humanity: murder – article 7(1)(a); extermination – article 7(1)(b); forcible transfer – article 7(1)(d); torture – article 7(1)(f); and rape – article 7(1)(g);

Two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities -article 8(2)(e)(i); and pillaging – article 8(2)(e)(v)

Three counts of genocide: genocide by killing (article 6-a), genocide by causing serious bodily or mental harm (article 6-b) and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction (article 6-c).

WHAT ARE OMAR AL BASHIR’S SPECIFIC CRIMES?

The International Criminal Court judges considered that there were reasonable grounds to believe that from March 2003 to at least 14 July, 2008, a protracted armed conflict not of an international character existed in Darfur between the Government of Sudan (GoS) and several organised armed groups, in particular the Sudanese Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM).  Soon after the April 2003 attack on the El Fasher airport, Omar Al Bashir and other high-ranking Sudanese political and military leaders of the GoS agreed upon a common plan to carry out a counter-insurgency campaign against the SLM/A, the JEM and other armed groups opposing the Government of Sudan in Darfur.

• A core component of that campaign was the unlawful attack on part of the civilian population of Darfur – belonging largely to the Fur, Masalit and Zaghawa groups – who were perceived to be close to the organised armed groups opposing the Government of Sudan in Darfur. The campaign was conducted through Government of Sudan forces, including the Sudanese Armed Forces and its allied Janjaweed militia, the Sudanese Police Forces, the National Intelligence and Security Service (NISS) and the Humanitarian Aid Commission (HAC). It lasted at least until the date of the filing of the Prosecution Application on 14 July, 2008.

• During the campaign, Government of Sudan forces allegedly committed crimes against humanity within the meaning of article 7(1) (a), (b), (d), (f) and (g) of the Statute and war crimes within the meaning of article 8 (2)(e)(i) and article 8 (2)(e) (v) of the Statute, and in particular:

a. carried out numerous unlawful attacks, followed by systematic acts of pillage, on towns and villages, mainly inhabited by civilians belonging to the Fur, Masalit and Zaghawa groups;

b. subjected thousands of civilians – belonging primarily to the Fur, Masalit and Zaghawa groups – to acts of murder, as well as to acts of extermination;

c. subjected thousands of civilian women – belonging primarily to the said groups – to acts of rape;

d. subjected hundreds of thousands of civilians – belonging primarily to the said groups – to acts of forcible transfer; and,

e. subjected civilians – belonging primarily to the said groups – to acts of torture.

The International Criminal Court judges also found that there are reasonable grounds to believe that:

Omar Al Bashir, as the de jure and de facto President of the State of Sudan and Commander-in-Chief of the Sudanese Armed Forces at all times relevant to the Prosecution Application, played an essential role in coordinating the design and implementation of the common plan;

and, in the alternative, that Omar Al Bashir also:

a.  played a role that went beyond coordinating the implementation of the said Government of Sudan counter – insurgency campaign;

b.  was in full control of all branches of the “apparatus” of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed militia, the Sudanese Police Forces, the NISS and the HAC; and,

c.  used such control to secure the implementation of the said Government of Sudan counter-insurgency campaign.

OMAR AL BASHIR WILL NEVER RETURN TO KENYA

Omar Al Bashir is not the kind of man Kenyans wish to celebrate anything with.  Omar Al Bashir needs to face the charges against him in Court and his victims need justice.  This man faces 3 counts of genocide by killing, deliberately inflicting on target groups conditions of life calculated to bring about physical destruction of thousands of his own citizens.  Al Bashir is also wanted on two counts of war crimes: specifically, intentionally directing attacks against a civilian population and pillaging – i.e. stealing their herds and destroying their farms.  Al Bashir faces 5 counts of crimes against humanity: murder, extermination, forcible transfer, torture, & rape. Al Bashir personally ordered these crimes. In total the two warrants of arrest, issued against Omar Al Bashir, list and detail 10 counts on the basis of his individual criminal responsibility under the Rome Statute – This is a very bad man.

No doubt our Foreign Minister, President and other GOK officials have read the 2nd Arrest Warrant for Omar Al Bashir issued only last July 12th 2010.   Is this the kind of person they are befriending?  Thankfully, Omar Al Bashir fled the country and embarrassed his hosts by behaving like the fugitive he truly is.  His hosts embarrassed themselves further by ordering the Nairobi Police to arrest and beat Kenyans who were peacefully protesting Omar Al Bashir’s presence in their country – this on the day the Constitution came into effect.

We have no doubt that Omar Al Bashir will never dare to return to Kenya.  We also urge fellow Africans who hate impunity to ensure that he finds no safe haven in their countries.  We hail the South African Government for declaring he will be arrested should he try and enter South Africa.

To those few Kenyans who believe that Omar Al Bashir should have been allowed to come to Kenya we urge you to read more about Omar Al Bashir’s crimes: specifically genocide of 3 Sudanese communities here:

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Wikileaks saga looks like persecution– Kenyans would vouch for Wikileaks; if we were asked.

3 years ago, we wrote about a new development on the transparency and anti-corruption front in a blog about a safe whistleblowing website called Wikileaks.org

It would appear that since then, and certainly now, Wikileaks has acquired powerful, and apparently innovative, enemies.

In 2007 Wikileaks’ servers in Sweden caught fire. Since then there’s been a lot of drama and now WikiLeaks founder Julian Assange faces charges which sound outlandish.

The Mars Group Kenya and other Kenyan anti-corruption and transparency advocates have a soft spot for Wikileaks. In September 2007 one of its first global media releases exposed the contents of a suppressed investigation report by the famed Kroll and Associates into the wealth of our former President Daniel Arap Moi. Wikileaks stated then that the leaker was at a high level within the Government of Kenya.

Many Kenyans were stupefied at the amazing sum totals (amounting to several billions of US dollars held in extremely dubious circumstances in dozens of countries around the world) which Kroll had traced to Daniel Arap Moi’s associates; and more Kenyans were disgusted that the Government of Kenya under President Mwai Kibaki had suppressed such information from millions of Kenyans who believed that Kibaki would trace and restitute their stolen funds. The Guardian famously entitled the first story on this leak The Looting of Kenya.

For many Kenyans, the Kroll expose amounts to sufficient bona fides for Wikileaks and its promoters. No one in Kenya will wisely second guess Wikileaks for telling Kenyans the cold hard truth about a dollar billionaire who spent his whole life as a relatively low-paid public servant, and the anti-corruption President who betrayed his personal pledge that corruption will cease to be a way of life in Kenya. Neither will Kenyans forget that Wikileaks also told the world about the extra-judicial executions documented by the Late Oscar Kingara and GPO Oulu of the Oscar Foundation, and later recorded by Philip Alston, an official United Nations rapporteur on Summary Disappearances and Extra Judicial Killings.  Oscar and GPO were murdered but their work certainly lives on even as investigations do eventually beckon.

Wikileaks, When Kenyans needed you (and when some of our official institutions abandoned their roles) you were there for us.

We agree with the Wikileaks authors who wrote three years ago:

The power of principled leaking to embarrass governments, corporations, and institutions is amply demonstrated through recent history.

Public scrutiny of otherwise unaccountable and secretive institutions pressures them to act ethically. What official will chance a secret, corrupt transaction when the public is likely to find out? What repressive plan will be carried out when it is revealed to the citizenry, not just of its own country, but the world?

When the risks of embarrassment through openness and honesty increase, the tables are turned against conspiracy, corruption, exploitation, and oppression.

Open government answers injustice rather than causing it. Open government exposes and undoes corruption. Open governance is the most cost effective method of promoting good governance.

Mars Group Kenya dot Org

PRESS RELEASE

MILLENNIUM DEVELOPMENT GOAL 5 : IMPROVE MATERNAL HEALTH IN KENYA.

ACTION BY PETITIONING PARLIAMENT TO INCREASE THE BUDGET ALLOCATION TO MATERNAL HEALTH CARE & PREVENTION OF DEATHS OF KENYAN MOTHERS AND CHILDREN FROM PREVENTABLE DISEASES.

We the world March of women Kenyan chapter;

Undertaking the role of motherhood with pride that it disserves,;

Honouring our mother country with our God given productive role

Acknowledging that;

  • Kenya has just passed a new constitution that recognises reproduction health as a basic right for every Kenyan,
  • That Kenya is a signatory to the 5th millennium goal ‘to improve maternal health’
  • Kenya pledged to increase health sector allocations by upto 15% of government expenditure in Abuja and reconfirmed its commitment at the AU summit in Kampala in July 2010
  • Kenya committed itself to invest more in community health workers

Respecting the fact that even though complication of pregnancy cannot always be prevented, deaths can be averted if women receive proper medical care

Recognising that the government is the custodian of our consolidated fund and parliament is responsible for proper budgetary allocations

Believing that the women of Kenya are the backbone of this nation call upon;

  • Kenyan government to honour its pledge to the women of Kenya.
  • Parliament to increase allocations to the health sector and more specifically to maternal health care and preventable diseases.
  • Parliament to establish a select committee to look into maternal and child deaths.
  • Parliament to identify funds within the National budget which can be re-allocated to immediate needs for maternal health.
  • Parliament to celebrate international women’s day and international Children’s day as official parliamentary occasions in solidarity with all women and children of Kenya.

Tomorrow, Thursday, 19th August 2010, World march of Women Kenya Chapter together with our partners and networks will commence action towards advocating for improved maternal health and prevention of deaths of Kenyan women and children from preventable diseases.

We will present the petition to parliament at 10.00 a.m on thursday 19th August 2010 and thereafter announce the launch of our online international campaign to collect ten million signatures worldwide in solidarity with all the countries that are committed to achieving millennium development goal No.5

Issued on Wednesday, August 18, 2010 at Nairobi Kenya, by the

World March of Women – Kenya Coordinating Body

1.       Anne Ngatia

2.       Lydiah Dola

3.       Anne Apiyo

4.       Beatrice Kamau

5.       Jayne Mati

6.       Deborah Kayalo Sagasi

7.       Ruth Vulimu Limo

8.       Jackline Wangare

9.       Damaris  Toboso

10.     Florence Keya

11.     Betty Sang

12.     Tafle Omar

13.     Jane Onyango

14.     Mumbi Njau

15.    Sophie D. Ogutu

Download full press statement

PUBLIC PETITION

Pursuant to Standing Order 205 (2)

SUBJECT MATTER: BUDGETARY ALLOCATION FOR MATERNAL HEALTH CARE AND FOR PREVENTING DEATHS OF KENYAN MOTHERS AND CHILDREN FROM PREVENTABLE DISEASES

To The National Assembly of Kenya

We, the undersigned

Petitioners are Citizens of the Republic of Kenya and wish to

Draw the attention of the House to the following:

In 2001, Kenya along with other African countries pledged at Abuja to increase allocation to the health sector up to 15% of government expenditure.

This pledge was repeated again in the recently concluded African Union Summit in Kampala, 19 to 27 July 2010;

African leaders including Kenyan have pledged to invest more in community health workers and re-committed to meeting the Abuja target. In the meantime, national budget allocations to health remain far below this target.

The Kenya budget for the fiscal year 2010-11 allocated slightly over Kenya shillings 55 billion to both ministries of Medical Services and Public Health and Sanitation. This is approximately 5.5 percent of the total Government of Kenya expenditure. About 41 percent of this allocation went to the Ministry of Public Health and Sanitation, which is responsible for primary health care including maternal health care up to Level 3 (health centre). Considering that this allocation translates to about 2.3 percent of total GOK expenditure, it is apparent that extremely little will be available for maternal health services.

In our view, this level of investment (about 2.3 percent of total GOK expenditure allocated to primary health care) does not reflect a strong government commitment to achieving MDG5 by 2015; it does not demonstrate high prioritization of maternal and newborn death prevention and reduction among the national priorities.

Further, 480 children die every day from preventable disease

THEREFORE your humble petitioners PRAY that Parliament

1. Resolve to urge the Government to fulfil its commitment to increase allocation to the health sector up to 15% of government expenditure within the current Financial Year, In addition, the Government should ensure more funds are channeled to maternal health services.

2. Resolve to establish a select Committee to look into Maternal and child deaths and working with experts to identify funds within the National Budget which can be reallocated to meet the target commitment.

3. Resolve to celebrate International Women’s Day and International Children’s Day as official parliamentary occasions in solidarity with all women and Children of Kenya

And your PETITIONERS will ever pray

Name of Petitioner

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Download AU Decisions, Declarations and Resolution on 27 July 2010, Kampala Uganda

IMPROVE MATERNAL HEALTH: IS ACHIEVING MILLENNIUM DEVELOPMENT GOAL FIVE (MDG 5) ELUDING KENYA?

 

Professor J K G Mati MD

 

Introduction

The purpose of this discussion paper is first and foremost to keep the torch burning on the unacceptably high rates of maternal deaths that persist in Kenya. It reviews where we are with regard to attainment of Millennium Development Goal 5 (MDG5), and examines some of the critical barriers to good progress in improving maternal health in Kenya. The views expressed in the paper are founded on respect for women’s constitutional right to life and health, and therefore their right to quality reproductive health services, which ensure that every pregnancy is wanted; all pregnant women and their infants have access to skilled care; and that every woman is able to reach a functioning health facility to obtain appropriate care in the event of complications. Going through pregnancy and childbirth safely is what every woman should expect. We know that even though complications of pregnancy cannot always be prevented , deaths from these complications can be averted. Up to 75 percent of all maternal deaths can be averted if women received timely and appropriate medical care. We have the knowledge of the causes of these deaths and how they can be prevented; we know what works and what does not work. It is now generally accepted that lack of skilled assistance during childbirth is the most important determinant of maternal mortality. What, in my view, is lacking is the commitment, at all levels, to act; to make the reduction of maternal mortality a high priority; and to reflect this in resource allocations to health services, especially for reproductive health care.

 

Background

On July 15, 2010 the Honourable Member of Parliament for Laisamis asked the Minister of Public Health and Sanitation (a) to provide the current statistics of maternal deaths in the country (Kenya) and (to) state the steps the Government has taken towards achieving MDG5; and, (b) what achievements the Government has made so far in terms of improving maternal health. I would like to believe this was not just a coincidence, and that it had a bearing on the forthcoming Africa Union Summit in Kampala, Uganda, July 19-27, and UN High-level Plenary Meeting on the Millennium Development Goals (MDG Summit) scheduled to take place in New York, September 20-22, 2010, both with an objective of reviewing progress towards the attainment of MDGs by 2015.

 

In his reply the Honourable Assistant Minister of Public Health and Sanitation relied heavily on the findings in the Kenya Demographic Health Survey (KDHS) of 2008/9 which gave a maternal mortality ratio of 488 per 100,000 live births. He emphasised there were wide regional disparities, and that in some provinces the mortality ratio rises up to 1,000 per 100,000 live births. This translates to approximately 8,000 pregnant Kenyan women dying each year from pregnancy-related complications. Among the steps being taken by the Ministry is the development of a National Road map for acceleration of reduction of maternal and newborn morbidity and mortality which outlines the strategies, priority actions and broad activities for acceleration of attainment of MDGs 4 and 5. The Government through the Economic Stimulus Programme (ESP) intends to expand pre- and in-service training of health workers and to employ and deployed 20 nurses in each constituency. In addition, model health centres are to be built in 200 constituencies, and 300 ambulances purchased and distributed to all health centres in the country.

 

Review of the progress made in improving maternal health in Kenya

Unfortunately, the Minister was not specific regarding the progress the Government has made so far in terms of achieving MDG5 of improving maternal health in Kenya. Fortunately, in this country we have serially compiled data which can be used to show trends in the attainment of the various indicators of improved maternal health. These are briefly reviewed below.

 

The targets for MDG5 (Improve maternal health) are two: 5.A: Reduce by three quarters between 1990 and 2015, the maternal mortality rate; and 5.B: Achieve, by 2015, universal access to reproductive health. The indicators to show attainment of these targets are as follows: 5A- Maternal Mortality Ratio and Proportion of births attended by skilled health personnel; and 5B- Contraceptive prevalence rate; Adolescent birth rate; Antenatal care coverage; and Unmet need for family planning. Table 1 summarises the progress Kenya has made towards the achievement of these targets.

 

Table 1: Progress made towards achievement of MDG5 in Kenya.

 

Goal 5: IMPROVE MATERNAL HEALTH

TARGET

Indicator

1990a

1995b

2003c

2008/9d

2015e

Target 5.A: Reduce by three quarters between 1990 and 2015, the maternal mortality rate

5.1 Maternal Mortality Ratio (per 100.000 live births).

590

590

414

488

147

 

5.2 Proportion of births attended by skilled health personnel (%)

44

42

40

44

90

 

 

1993

1998

2003

2008/9

2015

Target 5.B: Achieve, by 2015, universal access to reproductive health

 

5.3 Contraceptive prevalence rate (%)

33

 

 

39

 

39

46

70

 

5.4 Adolescent birth rate (%)

 

21

23

18

 

 

5.5 Antenatal care coverage (at least four visits) (%)

 

60

52

47

 

 

5.6 Unmet need for family planning (%)

 

 

25

25

26

 

Sources:

a Baseline MDG NHSSP- II (2005-2010); b Baseline NHSSP-I (2000-2005); c KDHS 2003; d KDHS 2008/9; e MDG 2015

 

Target 5.1 Maternal mortality ratio

According to the KDHS 2008/9 maternal deaths represent about 15 percent of all deaths to women age 15-49 in Kenya. A maternal death was defined as any death that occurred during pregnancy or childbirth or that occurred within two months of the birth or termination of a pregnancy, even if the death was due to non-maternal causes. The maternal mortality ratio (MMR) during the 10-year period before the 2008/9 survey was estimated at 488 per 100,000 live births, which is slightly higher than, but not significantly different from, the figure of 414 per 100,000 live births, which was reported in the 2003 KDHS. This implies that in the period between the two surveys, the rate of maternal deaths had either stagnated more or less at the same level, or had actually increased. Clearly, these figures do not depict a reducing trend towards the target of 147 maternal deaths per 100,000 live births set for 2015.

 

Target 5.2 Proportion of births attended by skilled health personnel

Skilled attendance at delivery is an important variable that influences the birth outcome and the health of the mother and the infant. One of the indicators of skilled attendance is the proportion of births that take place in health facilities. Skilled attendance can also be accessed through domiciliary or community midwifery. Proper medical attention and infection prevention practices during delivery can reduce the risks of obstetric complications that increase the risk of morbidity and mortality for the mother and her baby.

 

The KDHS 2008/9 showed that only about 43 percent of births in Kenya took place in a health facility, and that the decision on place of delivery was mainly influenced by factors related to ease of access- availability of transport to, and charges for services at, the health facility. The same survey also reported that, overall, only 44 percent of births in Kenya were delivered under the supervision of a skilled health provider (nurse, midwife or doctor). Contrary to the prevailing policy, traditional birth attendants (TBAs) assisted up to 28 percent of mothers at delivery (the same percentage as were assisted by nurses and midwives!).

 

In terms of progress made, the proportion of births assisted by medically trained personnel has increased only marginally, from 42 percent in the 2003 survey to 44 percent in 2008-09, this being far below the projected target of 90% for 2015. The proportion of mothers that received skilled attendance was, as would be expected, lowest in rural areas, and among women of lowest socio-economic status.

 

Target 5.3 Contraceptive prevalence rates

Kenya’s Family Planning Programme was established in 1967, a pioneering step in sub-Saharan Africa, which saw the contraceptive prevalence rate among married women (CPR) rise from 7 percent in 1979 to 17 percent in 1984, 27 percent in 1989, and 33 percent in 1993. However, during the period 1998-2003, CPR leveled off at 39 percent with wide regional as well as social strata differentials. The KDHS 2008/9 has demonstrated a rising trend, with CPR reaching 46 percent for use of any method and 39 percent for use of modern methods of family planning. While this trend is encouraging, CPR still falls short of the target for 2015 (of 70%), by more than 20 percentage points.

 

Target 5.4: Adolescent birth rate

Besides being an important contributor to the overall population growth, adolescent fertility is a determinant of maternal mortality rate, as well. Complications of pregnancy and childbirth are the leading causes of mortality among women between the ages of 15 and 19 , this to a large extent results from the lack of access to good-quality health care, including antenatal care and skilled attendance at delivery. The World Health Organization estimates show that the risk of maternal death is twice as great for women between 15 and 19 years when compared with those between the ages of 20 and 24 years . In Kenya, the 2008/9 KDHS showed that there had been a reduction in the proportion of teenagers who had begun childbearing (adolescent fertility), down to18 percent from the figure of 23 percent reported in the 2003 KDHS, although wide regional disparities persisted. Further analysis showed that the proportion of teenage mothers had declined from 19 percent in 2003 to 15 percent in 2008-09, while the proportion of those pregnant with their first child had declined from 5 percent in 2003 to 3 percent in 2008-09. These are encouraging results, even though it is difficult to explain the apparent reduction in adolescent fertility at a time when there was a fall in CPR (any method), among women 15-19 years, between the two surveys (from 6.7 percent in 2003 to 5.9 percent in 2008/9). Is this an impact of the “NimeChill” campaign?

  

For comparison, the teenage birth rates in South Africa and Nigeria are 7 and 10 respectively.

 

Target 5.5: Antenatal care coverage

Antenatal care is a critical intervention for the promotion of maternal and child health. The goal of antenatal care is to main tain and improve the health of the woman and her baby in utero, so that both are brought to labour in a good state of health. Antenatal care aims to diagnose and treat abnormalities of pregnancy soon after their symptoms are apparent; and to screen women for other conditions which may be present, before their symptoms manifest . Although the majority of pregnant women in Kenya attend an antenatal clinic at least once, usually starting in the second trimester, the KDHS 2008/9 showed that only 47 percent made the minimum four visits, with only 15 percent doing so in the first trimester as recommended by the World Health Organisation.

 

Target 5.6: Unmet need for family planning

Unmet need for family planning reflects the desire among Kenyans to control their fertility. Usually, it is the proportion of married women who either want no more children or wish to delay their next birth by at least two years, and are not using a family planning method. The KDHS 2008/9 showed that there is widespread desire among Kenyans to control the timing and number of births they have (i.e. to plan their families). Almost 54 percent of all currently married women either did not want to have another child or had already been sterilized, while nearly 27 percent would like to wait two years or longer before their next birth. Interestingly, the proportions were similar among currently married men, although men tended to be slightly more pro-natalist than women. Overall, there have been only minimal changes in fertility preferences among married women since 2003. Kenyan women continue to experience a high unmet need for family planning, with roughly one-quarter of currently married women in the three consecutive KDHS surveys since 1998 indicating that they have unmet need for family planning. Levels of unmet need are influenced by socioeconomic status of the woman; unmet need declines steadily with increase in the level of education and wealth status.

 

This may answer the Hon Member for Laisamis?

Having reviewed the status of the indicators for MDG5, we can now attempt to answer the tail end of the question asked to the Minister of Public Health and Sanitation, i.e. what achievements the Government has made so far in terms of improving maternal health. From the above data, it can be said that whereas considerable effort has been put to health policy and strategic planning, including the development of reproductive health policy, reproductive health strategy and the road map for accelerating the attainment of the MDGs related to maternal and newborn health in Kenya, these are yet to translate to actual reduction in maternal deaths. In terms of Target 5A, Kenya has not started showing any downward trend in MMR, or an increase in the proportion of births attended by skilled health personnel. However, in the case of Target 5B, the apparent recent rising trend in CPR, if it can be sustained, may get us close to the figure projected for 2015. Otherwise, a lot more effort is needed to produce any meaningful gains as far as the other indicators are concerned.

 

Kenya can benefit from lessons learned at home and abroad

1. Efforts to reduce maternal deaths have for decades been a focal point of international agreements and a priority for women’s rights and health groups throughout the world; these include the Alma Ata Declaration (1978), the International Conference on Population and Development (1994), the Beijing World Conference on Women (1995), and the Millennium Development Goals (2000). Ten years on from the original adoption of the MDGs at the Millennium Summit of 2000, and despite remarkable progress in some countries, many others are falling short in their achievement, and this is where Kenya falls. If the MDGs are to be achieved by 2015, not only must the level of financial investment be increased (see below) but innovative programmes and policies aimed at overall development and economic and social transformation must be rapidly scaled up and replicated.

2. It is generally agreed that Millennium Development Goals are inter-related; consequently, achievement of MDG5 is closely tied to the progress made in several other goals, especially Goal 1: Eradicate extreme poverty and hunger; Goal 2: Achieve universal primary education; Goal 3: Promote gender equality and empower women; and Goal 6: Combat HIV/AIDS, malaria and other diseases. There is accummulating evidence that the impacts of the AIDS epidemic are a strong counter force to efforts to lower maternal mortality in sub-Saharan Africa. High rates of HIV infection and AIDS-related illness among pregnant women will continue to contribute to higher rates of maternal mortality, unless current AIDS prevention and treatment programmes can be sustained and expanded.

 

3. From available evidence and experiences on the ground, it is obvious that accelerating progress on achievement of MDG5 requires not only a strengthened, but a radically transformed health system. Provision of reproductive health services (including maternal health care) cannot be considered in isolation, and generally, these services are strong where the health sector is strong, and vice versa. According to the World Health Organisation a health system comprises all structures, institutions and resources that are devoted to producing actions whose primary intent is to improve health. Service provision is one of the essential functions of a health system, and effective service provision can only take place where there is adequate infrastructure and qualified human and material resources, which in turn require adequate financial allocation and sound management. In order to accelerate progress on achieving MDG5, emphasis ought to be on sustainable high impact interventions, which should incorporate strengthening community partnerships and initiatives that aim to empower women. These high impact interventions include access to skilled attendance at delivery; emergency obstetric and post abortion care; functional referral systems; and a functional interface between the community and health facilities. Countrywide expansion of health outlets staffed by adequately trained health service providers is critical to effective implementation of these interventions. Employment of 20 nurses per constituency as planned under ESP is not enough, and is certainly not an equitable way of addressing the current shortage of health workers in Kenya. Calculation of health workers that are needed should be based on factors such as population size and its spatial distribution.

 

4. A recent study has identified what the authors call “powerful drivers of maternal mortality reduction”; these are as follows:

(a) Fertility decline as reflected by falling total fertility rates (TFR): Family planning as an instrument for birth control is at the same time a primary intervention for the prevention of maternal mortality. Family planning can also prevent high risk pregnancies which contribute to maternal and perinatal deaths. As a result universal access to reproductive health is one of the targets of MDG5, and CPR and unmet need of family planning are among the indicators for this target.

 

(b) Economic growth as reflected in increased per capita income: The economic factor can operate at the individual household or national levels. There is no doubt that rates of maternal death are highest within the poorer populations, which face several barriers to accessing health care services. At the same time inadequate resources is a major constraint to expansion of health services and improvement of quality of the services provided.

 

(c ) Empowerment of women as reflected in educational rates among women: Education of a woman is a powerful driver of better health and well being of the family, including empowerment to take decisions regarding seeking healthcare for herself and her family. 

 

(d) Improved obstetric care as reflected in access to a skilled attendant at delivery: Skilled attendance at delivery is a key determinant of maternal mortality, and a reflection of a functional health care system. In order to ensure access to skilled attendance the government must increase investments in basic health care, infrastructure, training and deployment of qualified health workers; paying special attention to equity in access to obstetric services. Every woman should be assured of access to skilled care throughout the continuum of pregnancy, childbirth and postnatal periods. 

 

5. To have an impact, interventions must target populations with the most need. A key policy objective stated in the National Health Sector Strategic Plan II (2005-2010) is to increase equitable access to health services for all through addressing equity and by expanding access to basic services with special focus on the community level. Also, Kenya’s Vision 2030 states government’s commitment to reducehealth inequalities and to provide access to those excluded from health care by financial reasons . As reviewed above, most reproductive health indicators portray big disparities between the poor and the better off with respect to access to health care services and health status. Generally, the poor lack access to health care in terms of availability, affordability, and acceptability. Hence, for interventions to achieve the intended impact they must target populations with the most need, in most cases these include urban and rural poor, the “hard to reach” groups and people with disabilities. Others ‘hard to reach’ are adolescents and youth, especially those out of school, migrant workers in industries and farms, internally displaced persons and refugees. These ‘marginalised’ sections of the population are frequently under-served by health services, in a large part because of poverty, as well as difficulties in accessing static health institutions, but most importantly, because their peculiar health needs are not adequately addressed in the planning of health services. Hopefully this may change under devolved governments in the near future?

6. Need for improved and sustained health financing. Inadequate funding and inequitable prioritization of needs are among the most important factors that are slowing the pace of achieving MDG5 in most African countries, including Kenya. Health financing that does not prioritize the ‘marginalized’ populations ends up benefiting mainly those (wealthier) groups that are at lower risk of maternal mortality. These in most cases, will be in the minority, and as such cannot improve on the national statistic on maternal mortality.

In 2001, Kenya along with other African countries pledged at Abuja to increase allocation to the health sector up to 15% of government expenditure. This was once again repeated in the recently concluded African Union Summit in Kampala, 19 to 27 July 2010; African leaders (including Kenyan), have pledged to invest more in community health workers and re-committed to meeting the Abuja target. In the meantime, national budget allocations to health remain far below this target. The Kenya budget for the fiscal year 2010-11 allocated slightly over Ksh 55 billion to both ministries of Medical Services and Public Health and Sanitation. This is approximately 5.5 percent of the total Government of Kenya expenditure. About 41 percent of this allocation went to the Ministry of Public Health and Sanitation, which is responsible for primary health care including maternal health care up to Level 3 (health centre). In my view, this level of investment (about 2.3 percent of total GOK expenditure) does not reflect a strong government commitment to achieving MDG5 by 2015; it does not demonstrate high prioritization of maternal death prevention and reduction among the national priorities.

 

Conclusions

From the data reviwed in this paper it is obvious that a lot remains to be done in Kenya if we are to get anywhere close to attaining the targets set for MDG5. There are areas where some progress has been observed, notably the recent increase in CPR, which, if sustained, may just make it close to target.  Otherwise the progress has been inadequate in almost all other indicators.  As stated above, we have the knowledge of the causes of maternal deaths, and how they can be prevented. We know what interventions work and which do not; what appears to be the main barrier is the lack of commitment to act; to prioritize reduction of maternal mortality, and to reflect this in resource allocations to the health sector, and to maternal health, in particular. From available evidence it is obvious that MDG5 cannot be achieved without emphasis on equitable expansion of access to basic services for all. Finally, let me end with remarks oft-attributed to Professor Mahmoud Fathalla of Egypt , "Women are not dying because of diseases we cannot treat. They are dying because societies have yet to make the decision that their (women’s) lives are worth saving." When will Kenya decide?

 

ENDNOTES

In at least 15% of pregnant women serious obstetric complication can occur that usually cannot be predicted or prevented in advance.

 

A skilled attendant as defined by the WHO, ICM and FIGO is “a health professional – such as a midwife, doctor, clinical officer or nurse- who has been educated and trained to proficiency in the skills needed to manage normal (uncomplicated) pregnancies, childbirth and the immediate postnatal period, and in the identification , management and referral of complications in women and newborns” (The Critical Role of the Skilled Attendant: a joint statement by WHO, ICM and FIGO. Geneva, World Health Organisation, 2004)

 

Proportion of women age 15-19 who were mothers or first time pregnant at the time of survey.

Locoh, Therese. (2000). "Early Marriage And Motherhood In Sub-Saharan Africa." WIN News.’.’ Retrieved July 7, 2006. en.wikipedia.org/wiki/Teenage_pregnancy  

 

 

Pregnant women should routinely receive information on signs of pregnancy complications and be checked for them at all antenatal care visits; this should include testing for HIV. In addition, they should receive prophylactic treatment against anaemia, and malaria where this is endemic, and be encouraged to make plans for the impending birth, including where it will take place and how to get there in case of emergency.

 

www.thelancet.com. Published on line April 12, 2010 DOI:10.1016/S0140-6736(10)60518-1

www.thelancet.com. Published on line April 12, 2010 DOI:10.1016/S0140-6736(10)60518-1

Republic of Kenya: Kenya Vision 2030 Brochure, July – August, 2007

 

Past President of International Federation of Gynaecology and Obstetrics Societies (FIGO)

Have you ever been to a place called Change?  We know some people who know how to get there! They have built a road to Change; it’s taken over 20 years – but it’s a good road!  It started off as an off road route, and for decades it looked like a road to Nowhere.  But undaunted, Kenyan patriots knew how important this road project was and kept at it – even when it wasn’t the popular thing and especially when it wasn’t the popular thing.  They had conviction and persistence and a historical perspective of why a road was necessary in the first place.  Change is the ultimate destination; and the Constitution a law for how to move on the road to Change.

Hence the demand for a New Constitution of Kenya.

This evening, the 5th day of August 2010, the Constitution road was opened for use by ALL KENYANS without discrimination.

Millions of Kenyans want to use this road to that place called Change, and millions more are young Kenyans, who are eager to see that place called change in the shortest time possible.

Today, the road to Change has been opened for all Kenyan Citizens to use, and also to look after, protect and defend. That road is the new Constitution of Kenya. New, so that our lives are better, so that our children can prosper, so that today and hereafter the citizens are in charge of Kenya’s democracy.

Very special thanks to:

The sheroes and heroes of the struggle – for your sacrifice Kenyans owe you their freedom

The entire IIEC team – you have done Kenya proud! An example that a lean, honest public institution that has the confidence of the public can deliver for Kenyans. – Hongera!

To the 40 Million Kenyans – who have today the opportunity to embrace freedom, democracy and Change.

Today, 5th August 2010 at 20.38 hrs at the Bomas of Kenya, the New Constitution of Kenya was declared ratified by the Chairman of the Interim Independent Electoral Commission Of Kenya.

‘  A dead tree stands apparently as firmly as ever – It may even seem firmer because it is harder – but it is rotten at the core,  and soon must fall.’ Tolstoy 1894

Hongera Kenya!

Mwalimu and Jayne Mati,

and the entire Mars Group Kenya Team.

Final Referendum Results

PRESS STATEMENT

The Kenyan Chapter of the World March of Women Calls for a Peaceful Referendum

World March of Women – Kenya Chapter is part of the International women’s Movement   that connects grassroots groups and organizations working to eliminate the causes at the root of poverty and violence against Women. While struggling against all forms of inequality and discrimination directed at Women, our values and actions are directed at making political, economic and social change. Our values are Solidarity, Equality, Freedom, Justice and Peace.

We, the World March of Women –Kenyan Chapter, hereby state as follows:

Acknowledging

i) That Kenya belongs to all Kenyans

ii) That all Kenyans must  co-exist peacefully

iii) Whenever there is chaos in Kenya, women suffer the blunt of the consequences

iv) In the past, Kenyan women have not stood in solidarity with each other

v) That women have previously not been very vocal on issues of preventing violence

vi) That all Kenyan Citizens were brought into the world by a woman and

vii) That any loss of life or  limb brings grief, pain and deep sorrow to a woman

Respecting the fact that every Kenyan has a right to exercise her/his democratic right of choosing how the country should be governed through the vote

Believing that the women of Kenya are the backbone of this nation, Call upon;-

  • All Kenyans to ensure that the forthcoming referendum is peaceful.
  • All Kenyan women wherever they are reach out to each other by holding hands as a gesture of solidarity as women for peace.
  • All women to ask their spouses, sons and neighbours to remain peaceful and demonstrate respect, tolerance and accommodate each other’s opinion.  Kenya is greater than all of us and we all belong here where we should be proud of our diversity and the ability to participate in a peaceful exercise of our democratic rights.

Whenever Kenya has experienced political unrest, it is we the women who have suffered more. It is we the women whose homes have been broken. It is we the women who are left to nurse our sons and husbands. It is we the women who have lost our precious husbands, sons and daughters.  It is we the women who are raped. It is our children who are defiled. It is we the women who have to carry the burden of the wrath of our neighbours who think we participated in one way or the other and it is we the women who have to carry the guilt of our sons, daughters and husbands as we nurse their broken egos.

We World March of Women Kenyan Chapter are NOT going to sit back and watch.  We call upon the police to ensure that there is security and the rule of law prevails.

We ask all Kenyans to remain vigilant and watch out for those who may want to use this historic moment to cause mayhem or unrest.

We thank the International Secretariat of the World March of Women and all the other International chapters for standing in solidarity with the Women of Kenya during this historic moment

Issued at Nairobi, 3rd August 2010

Kenyan National Coordinating Body

  1. Florence Keya
  2. Deborah Kayalo
  3. Sophie Dola
  4. Tafle Omar
  5. Jackline Wangare
  6. Jayne Mati
  7. Damaris Toboso
  8. Ann Apiyo
  9. Ann Ngatia
  10. Jane Anyango
  11. Beatrice Kamau
  12. Ruth Vulimu

Video of Statement here

Download the statement here

ANGLO LEASING BREAKTHROUGH – A MARS GROUP KENYA ANALYSIS OF FIRST MERCANTILE SECURITIES CORPORATION OF GENEVA  AND ITS FAILURE TO BLOCK INTERNATIONAL INVESTIGATIONS AGAINST IT BY THE KENYA ANTI CORRUPTION COMMISSION

The Kenya Anti Corruption Commission has won a very significant legal victory in the Court of Appeal of Kenya, against a mystery Swiss/ BVI financing entity known as First Mercantile Securities Corporation which is suspected of defrauding the Government of Kenya of millions of US dollars between 2002 and 2005. 


Judgement Summary
First Mercantile Securities Corporation had, in 2007, obtained Kenyan High Court orders prohibiting the Kenya Anti Corruption Commission from asking Swiss law enforcement authorities to assist it in investigating the beneficial ownership of First Mercantile Securities Corporation, and also to trace over 22.8 Million USD paid by the Government of Kenya to First Mercantile Securities Corporation, and associated entities, between 11 July 2002 and 1st February 2005 in extremely dubious circumstances.  In July 2007, and to the shock of KACC the High Court ruled in favour of First Mercantile and issued orders prohibiting the KACC from continuing to seek Mutual Legal Assistance from international authorities against First Mercantile, and crucially prohibiting the use of what had already been obtained by the Swiss search of the Geneva offices of Fiducia Intergest.  The First Mercantile Securities Corporation ruling was a prototype that was immediately duplicated in the case of Euromarine Industries, Navigia Capital and Impressa de Financas (alleged financiers of a Kenya Navy ship), and in the case of Midland Finance Securities Corporation (associated with Bradley Birkenfeld the jailed ex-UBS whistleblower and the bogus Administration Police telecommunications system.  Until the Judgement delivered by the Court of Appeal on 16th July 2010, the KACC was effectively blocked from pursuing the criminals, it had evidence of fraud against, abroad.  The KACC has already signalled its intention to similarly approach the Court of Appeal to set aside the Judgements of the Constitutional Division of the High Court whose precedents have just been destroyed by the Court of Appeal.

In their considered ruling the Court of Appeal Judges had the following to say:

KACC’s First Function is to Investigate:

We must point out here that the first function of the Appellant as set out in [Anti Corruption and Economic Crimes Act 2003] section 7 (1) (a) and:(b) is the investigation of the crime of corruption and also economic crime and to carry out such investigation, it is enough if the Appellant is of the opinion, we suppose based on reasonable grounds, that those crimes may have been or are about to be committed. (p.7)

First Mercantile is an Anglo Leasing Type Agreement

The total sum to be paid by GOK, inclusive of the deposit paid on the signing of the agreement was US $12,716,250. GOK paid the various instalments up to 14th June, 2004, leaving an outstanding balance of US $5,936.910.09. For some reason or reasons which we need not concern ourselves with in the judgment, GOK thereafter refused to pay any further instalments. We only need to point out that this agreement is one of those now notoriously referred to in Kenya as the Anglo-Leasing Scandal. (p.9)

KACC within the law to cooperate internationally under its own statute

So in section 12 (3) the Parliament of Kenya has conferred upon the Appellant [KACC] the power to work or act together or assist and be assisted by other foreign governments and if the Appellant is carrying out an investigation into corruption, or economic crime it is at liberty to work or act together and to be assisted by any foreign government, international or regional organization. It must logically follow that if the Appellant wishes to call upon the assistance of a foreign government, it must ask for that assistance. Whether such assistance be called “Mutual Legal Assistance” or whatever name one may give it the truth of the matter is that the Parliament of Kenya has given the Appellant authority to seek such assistance and in our view it is idle to say that before the Appellant can seek the assistance it must be shown that there is “reciprocity” between the requesting party and the party to whom the request is made. (p.23)

We were shown the Mutual Legal Assistance Bill of 2009 but that still remains nothing but a Bill. It may well be that that. Bill was published as a result of the decision of Lesiit. J in this case. But we do not accept the proposition that the absence of such legislation nullifies the specific provisions of section 12 (3) of the Act under which the Appellant operates. (p.24)

The search against FMSC was legal under Swiss law

The request was, if accepted. to be carried out in accordance with the Swiss Law. If that law allowed Swiss Authorities to seize documents and equipment, to freeze bank accounts etc. without any need to seek court orders there would be nothing wrong with that. If the Swiss law required them to obtain court orders before doing any of those things, it would be the duty of the Swiss Authorities to do so. The Appellant [KACC] could not have told the Swiss Authorities to provide their assistance and in doing so, comply with the Law of Kenya. That again would be insulting to a foreign government. The LMA was made under section 12 (3) of the Kenyan Act, and if the Swiss Authorities accepted the request, it was for them to determine how to carry it out in accordance with their Law. On this aspect of the matter, the learned Judge was, with respect, in error. (p.25)

The court will not fetter investigations by KACC even against High Ranking Government Officials

The Appellant, in its operations, is independent of GOK. The Appellant can investigate GOK officials if they are suspected to have been involved in corrupt practices or to have committed economic crimes. The investigations the Appellant was asking the “Swiss Authorities” were not confined solely to the Respondent [First Mercantile Securities Corporation]. The names of high ranking GOK officials are specifically mentioned in the LMA [Request for Mutual Legal Assistance]. Are those investigations also to be stopped? We repeat that even if the Appellant was to lodge civil claims against the Respondent or the officers of GOK, the Appellant would still require evidence to support such claims. With respect, the learned Judge was once again, in error on this aspect of the matter as well. (p.30)

First Mercantile’s Case is Dismissed in its Entirety

We have said enough. we think, to show that this appeal must be allowed. We accordingly allow the appeal, set aside the orders made by the learned Judge [Lesiit] and substitute therefor an order dismissing the Respondent’s notice of motion dated 16th July, 2007 and lodged in the High Court on 17thJuly, 2007. We award to the Appellant the costs of the motion in the High Court and the costs of this appeal. Those shall be the orders of the Court.

Dated & delivered at Nairobi this 16th day of July, 2010.

R.S.C. OMOLO

…………………………….

JUDGE OF APPEAL

S.E.O. BOSIRE

…………………………….

JUDGE OF APPEAL

P.N. WAKI

……………………………

JUDGE OF APPEAL


WHO OR WHAT IS FIRST MERCANTILE SECURITIES CORPORATION

First Mercantile Securities Corporation, incorporated in the town of Tortola, British Virgin Islands, but giving its address as Geneva, Switzerland signed a deferred payment agreement with the GoK on 11 July 2002 to provide Spacenet with a guarantee and indemnity for the deferred payments up to USD 811.7 million. As explained in detail in Section 5 of the PWC Report of 2007, there is an inconsistency in the contract whereby the Government agreed to pay a full price of USD 40 million for finance of the contract value, but what it received as consideration was not finance but a guarantee to provide future payments to Spacenet, an American company which eventually turned out to have nothing to do with the delivery of the contract.

The registered agent of the First Mercantile Securities Corporation is Trident Trust Company (BVI) Limited. According to PWC its registered agent either does not hold any record of or does not choose to disclose, the beneficial owner. The company was incorporated on instructions of an intermediary, Brian Scott and Co Solicitors, of the UK and the contact given was a Mr David Whiteley. Brian Scott is the contact mentioned on the passports of Mr and Mrs Perera.  A Swiss news reporter in 2007 however traced the registered offices of First Mercantile Securities Corporation to the offices of the Geneva asset management company Gautier & Cie, where he found a Swiss citizen Robin Luisier, who claimed to be a director of First Mercantile. Luisier was at that time simultaneously boss of the fiduciary Fiducia-Intergest which was providing letterbox cover for First Mercantile. At that time he wrote “Whoever wants to go to Fiducia and First Mercantile must use the entry to the offices of Gautier & Cie.”

On December 16th 2005, First Mercantile filed a Payment Action (demande en paiement) in Geneva seeking immediate judgement against the Government of Kenya for USD5.9 million.  KACC failed to have the suit dismissed but eventually, on 3rd May 2007, made a formal request for Mutual Legal Assistance to the Swiss authorities stating inter alia:

KACC is investigating in the present case serious criminal offences which include breach of laws, procedures and regulations,  corrupt transactions with agents, in which Government of Kenya officials acting on false and or fraudulent information awarded a contract for US$12.8 million. About US$6.8 million was paid out to First Mercantile Securities Corporation, Tortola, Succursale de Geneva, a subsidiary of First Mercantile Securities Corporation, British Virgin Islands, (Enclosures 3 & 4) to Swiss Bank Accounts which is the reason the present request for MLA is made to Swiss Authorities.

The KACC went further to set out the kind of evidence it hoped the Swiss investigators were likely to find:

“The relationship between FMSC and its Fiduciaries in Geneva, who pays them, how, when and for what

. The source of funds that pays these Fiduciaries

. Verification of the address used when entering into the contract and the relationships thereof with the beneficial owners of FMSC.

. Banking records and the identities of the beneficiaries of the funds to whom the monies paid out by the Government of Kenya under the contract may have been remitted.

. The principals behind the FMSC contract, related parties and the extent of each person’s involvement

. Whether any bribes or kickbacks may have been paid to Kenyan Government officials.

. Whether FMSC; actually financed the supply of equipment to PCK under the contract as purported in the contract

. Acquisition cost of equipment sold to the Kenya Government

. It is believed that the persons under investigation will be taking various measures to ensure that they cannot be traced or their assets seized. “

On the basis of this Mutual Legal Assistance request, the Swiss Federal Procurator searched Fiducia’s office taking documents related to the Kenya financing contracts.  It was then that First Mercantile moved to court, not in Switzerland, but by fresh suit in Kenya on 28th June 2007.  First Mercantile, through it lawyer Fred Ngatia, filed a signed declaration by Robin Luisier before a Geneva notary; in which Luisier claimed that the contract between First Mercantile and Kenya still existed and that none of the parties had indicated irregularities regarding its execution. This definitely did not correspond to facts, given the civil action pending before the Geneva courts, which were ultimately determined recently in Kenya’s favour.  Eventually, in July 2007, and to the shock of KACC the High Court ruled in favour of First Mercantile and issued orders prohibiting the KACC from continuing to seek Mutual Legal Assistance from international authorities against First Mercantile, and crucially prohibiting the use of what had already been obtained by the Swiss search of the Geneva offices of Fiducia Intergest.  The First Mercantile Securities Corporation ruling was a prototype that was immediately duplicated in the case of Euromarine Industries, Navigia Capital and Impressa de Financas (alleged financiers of a Kenya Navy ship), and in the case of Midland Finance Securities Corporation (associated with Bradley Birkenfeld the jailed ex-UBS whistleblower and the bogus Administration Police telecommunications system.  Until the Judgement delivered by the Court of Appeal on 16th July 2010, the KACC was effectively blocked from pursuing the criminals, it had evidence of fraud against, abroad.  The KACC has already signalled its intention to similarly approach the Court of Appeal to set aside the Judgements of the Constitutional Division of the High Court whose precedents have just been destroyed by the Court of Appeal.

WHAT FIRST MERCANTILE SECURITIES CORPORATION GOT PAID

Despite its mysterious background, the Government undertook to repay by instalment to First Mercantile (an alleged Guarantor) amounts totalling to $ 12,766,250 or estimated KShs 919,170,000 at an estimated exchange rate of KShs 72 to the US$ in 2002.  The contract was entered into on 11 July 2002 and by February 2005 First Mercantile had received $6.8 million from the Government of Kenya. The estimates for the full amount of credit, namely KShs 919,170,000 should have been included in the 2002/2003 printed estimates under the vote of Ministry of Transport and Communication, but were not.  In the absence of such estimates in 2002/03, being the year in which the Government entered into a contract with a commitment of more than $12.7m, parliament was not able to debate and approve this expenditure.

Mr Kyungu the PS MOTC at the time executed the agreement with Spacenet and Mr. Samuel Bundotich the Financial Secretary at the time, executed the agreement with Spacenet and First Mercantile to facilitate the provision of goods and services on credit by Spacenet, without the estimates of expenditure having been approved by parliament. This is a breach of regulation 3(2) of the External Loans and Credit Act (Cap 422) which states that no goods or services shall be purchased on credit unless provision is made in the estimates approved by Parliament. It should be noted that although  Mr Mudavadi did not execute the agreement, he was involved in the negotiations which resulted in the execution of the agreement.  Parliament never approved nor did any Minister present the details of this loan to the National Assembly.

The Government suspended payments because of the adverse publicity about Anglo Leasing and Finance Limited. To establish whether there were irregularities referred to in the other security contracts, the Government suspended further payments and instructed the Controller and Auditor General (,C&AG”) in August 2004 to conduct a special audit on 18 security contracts and further directed the KACC to carry out investigations.  The First Mercantile Securities Corporation transactions are corrupt according to the Kenya Anti Corruption Commission, and therefore the dismissal of injunctions against further investigations is a critical victory for the search for civil and criminal accountability for grand corruption in Kenya.

OTHER ENTITIES INVOLVED WITH FIRST MERCANTILE SECURITIES CORPORATION IN THE DEALINGS WITH THE GOVERNMENT OF KENYA

There were a number of entities that were involved at the various stages of the PCK contracts i.e. from the project initiation to the signing and performance of the contracts. Below is background information on these entities and their relevance to the financing agreement which caused the Kenya Anti Corruption investigation of First Mercantile Securities Corporation.

Source: PWC Report on Valuation and Forensic Audit of Security Contracts related to the Postal Corporation of Kenya June 2007 pages 26-29, 71-2

Spacenet Inc (”Spacenet”)

Spacenet signed the Broadband contract on 11 July 2002 with the GoK to supply VSAT, computers, servers and other equipment and services. Spacenet, a company quoted on the New York Stock Exchange, was founded in 1981 and sold to Gilat Satellite Networks Ltd (”Gilat”), an Israeli company, in 1998. It is a wholly owned subsidiary of Gilat. Its principal place of business is Mclean, Virginia.

Mr Mark Bresnahan, the Vice President and General Counsel for Spacenet confirmed the following to the Federal Bureau of Investigations (”FBI”) in the USA in his interview in May 2007 (Exhibit 7):

  • Michael Alan, the person who executed the Spacenet agreement with the Government was not an employee of Spacenet. Mr Bresnahan thought that Alan was possibly an employee of Alldean Satellite Networks (Kenya) Ltd. There is some evidence that the beneficial owner of Alldean Satellite Networks (Kenya) Ltd is Mr Anura Perera as explained later in the report.
  • Mr Eisenberg, the Chief Financial officer for Spacenet at the time, assigned power of attorney to Alan to act for Spacenet in Africa for day to day matters
  • The Spacenet contract was re-assigned to Gilat
  • He had never heard of Universal Satspace, the company that executed the Bandwidth contract and Alldean Satellite Networks (Kenya) Ltd, the local company that installed and commissioned the Broadband equipment until the recent inquiry from the US Embassy
  • The Spacenet contract was re-assigned to Gilat Satellite Networks Ltd who was then responsible for handling the contract
  • In 2004, Spacenet signed a letter at the request of Gilat Satellite Networks Ltd, in order for Gilat Satellite Networks Ltd to receive funds from First Mercantile Securities Corporation. Spacenet did not receive any funds in relation to this contract

Gilat Satellite Networks Ltd (”Gilat”)

Gilat has its principal place of business in Petah Arye, Israel. It was founded in 1987 in Israel and describes itself with justification as a “leading provider of products and services for satellite-based communication networks.”  In March 1993, Gilat went public with an IPO on the New York Stock Exchange. In 1998, Gilat acquired Spacenet Inc, a VSAT network service provider and major customer, from GE Americom.  The General Counsel of Gilat, Mr. Rael Kolevsohn confirmed by e-mail (Exhibit 8) to KACC that Spacenet contracted Gilat to supply the equipment under the Broadband contract. It is evident from the Bill of lading and invoices (Exhibit 9) that Gilat Satellite Networks (Holland) BV, a subsidiary or connected company based in Netherlands, supplied the equipment from Israel. The installation was done by Alldean satellite Networks (Kenya) Ltd.

Alldean Satellite Networks (Kenya) Ltd (the name was changed from Gilat Alldean (Africa) Ltd in August 2003)

Gilat Alldean (Africa) Ltd is a local company incorporated in 1999 with Mr David Raffman and Mr Davinder Virdee (both of law firm, Raffman Dhanji Elms and Virdee) as subscriber shareholders holding the shares in trust for Mr. and Mrs. Perera. (Exhibitl0). It changed its name to Alldean satellite Networks (Kenya) Ltd on 25 August 2003. Based on the correspondence seen, it is evident that Alldean has operations in Tanzania and Uganda as well as in Kenya.  Although the contract to supply, install and commission the equipment was with Spacenet, the installation and commissioning was done by Alldean as evidenced by documents contained in the Alldean computers, imaged using our forensic technology software. It appears that the implementation of the project was carried out by Alldean staff and the project was managed by Mr Pritpal Thethy, Mr Perera’s auditor and business associate.  Alldean invoiced Gilat in Israel as and when installations were completed (Exhibit 11). We have not had access to the subcontractor agreement between Spacenet/Gilat and Alldean.  Alldean is variously described as a local representative in Kenya of Gilat and Spacenet. Its Managing Director, George Bolz, told Business week in his interview in 2002 that Alldean was the representative in Kenya of Gilat of Israel, the world leader in the field of telecommunications.

Universal Satspace North America LLC (“Satspace”)

Satspace signed the Bandwidth contract on 11 July 2002 with the GoK for the supply of Bandwidth spectrum and network operation and control services for a period of 10 years with full payment to be made within a period of five and a half years of signing the contract.

As explained in the PWC report, it is unusual, unfavourable and expensive to enter into a 10 year contract with advance payment for such services. Satspace subcontracted Alldean on 26 July 2002 to provide Network operations and control services to PCK. This subcontract agreement was signed by Mr. Avraham Ziv Tal (he sometimes refers himself as Avram Ziv Tal) for Satspace witnessed by Brian Scott (Mr. Perera’s lawyers) and signed by Mr. Thethy for Alldean and witnessed by Muin Malik advocates (Exhibit 12).

A search carried out on the Delaware website indicates that Satspace is registered with the Delaware Division of Corporations (File number 3524965) by an agent, Corp America Inc. The registered agent of Satspace is Corp America Inc of 2711 Centreville Road, suite 400, Wilmington DE 19805 New Castle County Tel 888/736-4300.

The site indicates that Satspace has no authorised shares, has paid an annual tax of $200 and has not filed any annual reports. We understand that the advantage of incorporating in Delaware is that it is not necessary to identify or provide addresses for the initial directors in the Articles of Incorporation of the company.

The address for Satspace quoted in the PCK bandwidth contract is “30 Old Rudnick Lane, Dover, D.C. 19901, Kent County, USA.”  The “DC” should have read “DE” for Delaware. According to the search done by a lawyer appointed by KACC/GoK, this is the registered office of a large number of other companies for which Corp America is also the agent.

Satspace appears not to have been incorporated until 5 October 2002 (Exhibit 13) almost three months after it purported to enter into a contract with the Government. In this circumstance, it is questionable how Satspace was presented as a joint venture partner with Spacenet and an experienced service provider.

Satspace has recently filed two suits against the Government, one in Kenya for a judicial review of the decision of PCK to award tenders to other bidders to provide Bandwidth services and the other in the UK for non payment under the contract with the Government. The Government filed a counter defence through its lawyer Michael Whitton of Edwin Coe LLP, London. Mr. Whitton informed us that the matter came up for hearing on 11 May 2007 at which a stay of proceedings for a period of 60 days was agreed between the parties, the idea of which was to allow the parties the opportunity to engage in settlement negotiations following receipt of the PricewaterhouseCoopers valuation report relating to the Universal Satspace contract.

The suit in Kenya has been filed by Mr Ziv Tal as CEO of Satspace. Website searches indicate that Mr Ziv Tal was previously the Vice President of Marketing and Sales of Gilat.

Anura Perera

The PWC Report on Valuation and Forensic Audit of Security Contracts related to the Postal Corporation of Kenya June 2007 concludes that there are several security related contracts that have been traced through investigations by PWC to Anura Perera. These contracts are:

  1. PCK Broadband for the Supply of VSAT and related equipment
  2. PCK Bandwidth for the supply of Bandwidth Spectrum
  3. NEXUS for the delivery of an integrated command and control system for the
  4. Department of Defence
  5. VSAT contract between Department of Defence and Gilat Alldean international
  6. Limited.
  7. Euromarine for the supply of the Naval Vessel to the Kenya Navy
  8. Project Flagstaff for the National security intelligence service and
  9. Project 99

It continues that “based on the information gathered by the KACC and from our investigations (which includes interviews, computer imaging, searches and seizures) we provide below a background on Mr Perera.

Mr Anura Leslie Perera is Sri Lankan by birth and holds an Irish passport. He is currently believed to reside in Nicosia Cyprus where he is believed to have significant business interests. He lived in Kenya and did business with the Kenyan Government for many years.

He also has significant business interests in Kenya, Tanzania, United Kingdom and the United Arab Emirates. We have been told that Mr Perera worked for Ryce Motors in Nairobi in early 80’s before he moved to do his own business.

The local companies associated with Mr Perera and involved in the two PCK contracts are Alldean and Jazi Holdings Limited.

As previously mentioned, Alldean was incorporated in March 1999 with Mr David Raffman and Mr Davinder Virdee (both of Raffman, Dhanji, Elms and Virdee advocates) as subscriber shareholders, holding the shares in trust for Mr and Mrs Perera. Mr Raffman is a signatory to Alldean’s bank account No 1090100111 at Equatorial Bank.

The current shareholders of Alldean are Vertex Communications LLC (17,498 Ordinary

shares and 225,000 Preference shares in Alldean) and Mr Muin Malik (7,502 ordinary

shares) (Exhibit 59). The current shareholders acquired their shares in December 2005

from the shareholders then, Mr Raffman, Mr Virdee, Mr Thethy and Mr Chaudhry. Vertex Communications LLC was incorporated in 2005 in Delaware, USA. It is likely that like Satspace, Vertex Communications is registered by an agent whereby the registered agent is the only person who knows the identity of the owner of the company. Jazi Holdings Limited appears to be owned by Alldean and Mr. Muin Malik, both holding one ordinary share each. Mr David Raffman and Mr Davinder Virdee were prior subscriber shareholders holding one share each in trust for Mr and Mrs Perera.

The international companies involved in the two PCK contracts are Universal Satspace LLC North America (Delaware USA) and First Mercantile Securities Corporation.  The contracting entities used for the security contracts are generally registered in tax haven jurisdictions such as BVI, St Vincent and the Grenadines, State of Delaware in the USA and Liechtenstein where ownership can be concealed and where the directors could be agents.

The contracted entities mostly subcontracted the work under the contracts. The subcontractor on the Broadband was mainly Gilat Satellite Networks Ltd and for Bandwidth it was Alldean Satellite Networks (Kenya) Ltd.

There is evidence of contacts with key public officers and politicians particularly at the Department of Defence, the MoF and the PCK. These include General Kibwana the former Chief of General Staff, Joseph Oyula the former FS, and David Onyonka, the former Head of the Debt Management Department.”

RELATED REPORTS: VSAT @ POSTA – A REPORT ON THE POSTAL CORPORATION OF KENYA – VSAT SCANDAL

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Mars Group Budget Findings Vindicated and Confirmed by Parliamentary Budget Office Experts Report

Mars Group has been raising concerns over the accuracy of budget documents tabled in Parliament by the Treasury since the March 2010 Budget Policy Statement and even with the June 2010 National Budget Estimates.  Our concerns have been met with abuse by the Chairman of the Budget Committee and unnamed staffers of the Parliament Budget Office.  In an ironic twist, yesterday the Parliamentary Budget Office released a Budget Report which confirms our research data.  Though we have far more issues with the Budget Estimates and documents tabled in Parliament by the Minister of Finance than the Parliamentary Budget Office has listed, we believe this report is an important first step in the right direction – towards fiscal accountability and transparency.

Specifically:

  1. There are huge variations between the Budget Policy Statement and the Budget Speech
  2. The revenue target is unlikely to be met.
  3. The projected deficit is larger than stated by the Minister of Finance.  The PBO calculates it at 228 billion shillings rather than the 167.2 billion stated by the Minister of Finance.
  4. Appropriations in Aid are not properly recorded in the Estimates of Revenue.
  5. There are anomalies and mathematical errors ion the Estimates of Revenue of State Corporations.  This has an implication on the overall deficit.
  6. Treasury is in breach of the Fiscal Management Act for failing to table a Treasury Report on outstanding audit recommendations by Parliament.  The major audit recommendation last year was for an independent forensic audit of the National Budget for the period 2006-2009, and it was ordered by a unanimous Resolution of the National Assembly.

The question is, will the Treasury ignore the Parliamentary Budget Office too?  And moreover, in view of the August 31st deadline for approval of the National Budget by guillotine, what will our Members of Parliament do about the sad state of affairs depicted in this Report?  Will it drop it as they did their own resolution for an independent forensic audit?  The National Assembly is under an obligation to enforce its own Resolutions.  Had they ensured that the Clerk of the National Assembly did his job and commissioned the independent forensic audit perhaps we wouldn’t see such reports about the Budget and errors.

We feel Vindicated.

Mars Group Kenya

Download Report Parliamentary Budget Office Releases MPs Budget Watch Vol.3 of 2010  –   The MPs Budget Watch Vol. 3 of 201

In the public interest and for transparency, Mars Group now publishes the full text of the Akiwumi Report to inform public discussion and action on this controversial issue of enhanced pay and remuneration arrangements for Kenya’s Members of Parliament.  Click here to download a copy of the full text of the Parliamentary Service Commission’s Comments and Recommendations on the Akiwumi Report

It is clear they have enhanced their remuneration beyond what Justice Akiwumi and his Tribunal actually recommended. Akiwumi recommended that MPs minimum monthly remuneration (including taxable and untaxable allowances) should be Ksh 1,091,000 before tax. The PSC enhanced this to Ksh 1.24 million (exclusive of sitting allowances). Click here to download a copy of the full text of the Akiwumi Tribunal Report

Parliament’s website carries the following official note on the controversial Report, but not an actual copy of it:

House adopts Akiwumi Tribunal Recommendations
On Wednesday 30th June 2010 morning….. session, the Parliamentary Service Commission (PSC) tabled the report of the Akiwumi Tribunal. Hon. Walter E. O. Nyambati, MP, and Vice Chairman of the PSC tabled the report with comments from the Commission. The Tribunal headed by Retired Justice Akilano Akiwumi was appointed by the PSC via Gazette Notice No. 699 of 23rd January 2009 to review the terms and conditions of service of Members of Parliament and staff of the Parliamentary Service and presented its report to the Speaker of the National Assembly, Hon. Kenneth Marende, EGH, MP on 12th November 2009.

The Tribunal’s report and recommendations together with the comments by the Commission were debated and adopted by the House on the afternoon of Wednesday 30th June 2010 sitting. It is now expected that the Deputy Prime Minister and Minister for Finance will proceed to publish relevant bills to be enacted by the House to put into effect the recommendations. If adopted, most of the recommendations will take effect from the 11th Parliament.

In moving the Motion for Adoption of this contentious report, the Vice Chairman of the Parliamentary Service Commission had this to say:
Mr. Temporary Deputy Speaker, Sir, the PSC is aware that concerns of remuneration are emotive issues. Human nature is that the employees generally want to pay less to their workers while those who are employed want to earn more for the work done. It is important to strike a balance between the two. There should be fair remunerations for work done and they should take into account the amount of work done as well as the responsibility given to the employee. In this case, the employee is the Member of Parliament and the employer is the people of Kenya.

In making the recommendations on the remunerations of Members of Parliament, in the two documents laid before the House today, both the Tribunal and the PSC sought to strike a fair balance between the need to properly facilitate our Members while at the same time ensuring that the remuneration was not inordinately high. It is important to note that these hon. Members before you carry the responsibility of overseeing the Government’s Kshs1trillion budget that was presented by the Deputy Prime Minister and Minister for Finance. The hon. Members shall further be responsible for both deducing and passing legislation affecting the country and the region. The Members are also responsible for bringing forward their constituents’ concerns to the national platform. This means that the responsibility of hon. Members is high in the sense that they play oversight role, do legislation and represent their constituents.

Mr. Temporary Deputy Speaker, Sir, it should, however, not be forgotten that Members of Parliament are servants of the people called upon to serve their people. Their remuneration should, therefore, not be designed in such a manner, as top executives in the private sector. The Tribunal, in making its recommendations, has strived to find the right balance concerning Members’ remuneration.

I would like to specifically address the issue of taxation. The Commission noted that the Tribunal had received various submissions from Kenyans on taxation on the remuneration of the Member of Parliament, and in particular, the taxation of allowances.

The Tribunal recommended the taxation of some allowances and the exemption from taxation of other allowances. Meaning that in its wisdom, the Tribunal looked at some of the allowances which may be taxable and those which may not be taxable. The Tribunal recommended the taxation of some allowances and exemption from taxation of other allowances. The allowances recommended to be taxed are primarily those that accrue as a direct benefit to the Member of Parliament such as sitting allowance, responsibility allowance, extraneous allowance and severance pay. The allowances recommended to be tax exempt by the Akiwumi Tribunal are primarily those that are facilitative. These are the ones which facilitate the Member of Parliament to do his duties. These are house allowance, constituency allowance and car maintenance allowance.

The Tribunal noted that Members of Parliament were elected and sworn in to serve Kenyans while on a specific remuneration. It could, therefore, be unfair and contrary to the general principles of labour relations and against the laws of natural justice to reduce the remuneration of Members of Parliament half-way through their term.

The Tribunal, therefore, made recommendations on the remunerations on the basis of increasing the number of taxable allowances while ensuring that Members remuneration packages were not altered in a manner detrimental to Members. This means that quite a number of allowances are now taxable.

The Commission has noted that many Kenya have opined that the tax regime levied on ordinary Kenyans should be extended to Members of Parliament. Indeed, the Draft Constitution whose referendum is slated for 4th August, 2010 provides that any law that seeks to exempt the allowances of Members of Parliament from taxation will be null and void to the extent of that exemption. If the Draft Constitution is approved by Kenyans, then the take-home remuneration of Members of Parliament shall be reduced by at least Kshs200,000 as all allowances will now become taxable. This could be largely detrimental to the Members of Parliament who were elected based on a certain take-home remuneration and have consequently made arrangements based on that take-home remuneration.

The Members of Parliament have a legitimate expectation that their remunerations shall not be altered to their detrimental while half-way through their five-year-term. The Commission has, therefore, taken all those factors into account in making further recommendations on the remunerations of Members of Parliament and various office holders.

Mr. Temporary Deputy Speaker, Sir, these recommendations seek to enhance the tax payable by all Members of Parliament and, therefore, take care of the concerns of the public with regard to taxation. The facilitative allowances are, however, proposed to remain the same. This honourable House is being asked to adopt the Tribunal’s report together with the Commission’s recommendations for the salary of various office holders as contained in the report and the recommendations of the Commission, which are in those two booklets. This includes the salaries of the Office of the Prime Minister, the Deputy Prime Minister and the Vice-President, among other officers.

The full proposed remuneration package is set out in the documents that I laid on the Floor of the House. The Tribunal has also made other recommendations that the Commission agrees with. First, a grievance handling system be developed for Members of Parliament and documented as part of the Members’ handbook.

Two, we had recommended that Members of Parliament should be provided with adequate medical cover. This also is a recommendation from the Akiwumi Tribunal and we realize that MPs are not fully covered and the report recommends that we give adequate cover to them. The third recommendation is that upon the unfortunate event of the death of a Member of Parliament, the Commission should ensure that the Member is accorded a decent burial.

The fourth recommendation is that hon. Members should be accorded maternity leave. This applies mainly to our lady members of Parliament and also paternity leave for our male MPs. The fifth recommendation is that adequate facilities should be provided for MPs to enable them effectively carry out their duties, whether it is offices or other things. Sixth, steps should be taken to ensure the effective and efficient utilization of the Constituencies Development Fund. We should ensure that the CDF money is utilized in the best way possible.

Seven, it recommends that adequate training for MPs be undertaken so that they are fully equipped to carry out their duties in the offices and in the constituencies and the oversight function. Eight, it recommends that members of the public be properly sensitized as to the role of the MP because as of now, they are not fully sensitized on the role and duties of the MP. We are trying to do so by creating even the outreach facilities to ensure that they are informed.

Ninth, the report recommends that the Parliamentary Mortgage Scheme be enhanced.

Ten, it recommends that mechanisms be put in place to provide for the retirement of an MP on the ground of infirmity or incapacity. Once an MP is incapacitated in a way, there should be a better method of ensuring that there is something to retire on.

Eleven, it recommends that all MPs develop strategic plans for their constituencies so that their constituents are able to judge at the end of the term, the Member’s performance.

Mr. Temporary Deputy Speaker, Sir, the Tribunal further observed that former MPs are part of the face of Kenyan leadership outside Parliament and that people at the grassroots continue to look up to them for all manner of support, guidance and leadership.

They bear the burden of social responsibility and meet many challenges of the basic needs of local people which are imposed on them by the circumstances beyond their control. The tribunal also noted that it is virtually impossible for a former MP to get any gainful employment after being an MP. For this reason and drawing from the precedent from other Commonwealth countries that pay their former MPs a token of tax free pension, the Tribunal recommended that former MPs be paid a minimum basic pension.

The Commission has also independently recommended that the Parliamentary Pension Committee look into the issue of the retirement benefits for MPs who retire after serving only one term as they are a particularly vulnerable group members. This is important because a term of an MP is a finality in itself. So we want the Parliamentary Pension Committee to look into the possibility of pension for a Member who has just served for one term.

Mr. Temporary Deputy Speaker, Sir, if this hon. House adopts the recommendations before you, amendments to various laws will need to be effected to give legal backing to the same. Most of the proposals shall occasion additional expenditure on public funds. It is for this reason that the House is requested to urge the hon. Deputy Prime Minister and Minister for Finance to publish and bring to the House, the Draft Bills necessary to give legal effect on the Tribunal to report on the Commission’s recommendations within the next seven days. The Commission has made it easier for the Deputy Prime Minister and Minister and Minister for Finance to do so by preparing the Draft Bills which are annexed to the Commission’s comments and recommendations.

Mr. Temporary Deputy Speaker, Sir, I beg to move.

Bribery and corruption are receiving an unexpectedly high degree of attention at present. The relevance of aid to fostering or solving the problem is getting some attention. I hope to use my own experience to illustrate the damage corruption does to countries like Kenya and how serious the problem is there; how the problem carries ramifications for us in Britain, for our development assistance and trade policies, anti-corruption and money-laundering regimes; and whether the tide might be turning.

My concern this morning is to try to highlight the costs of corruption to developing countries. And I take Kenya as my principal case study because that’s where I was stimulated by the availability of evidence to get involved in campaigning on the subject. It leads us not only to the responsibility of poor countries but to the responsibility of donors – governments and individuals  – who give aid, or control the International Financial Institutions which make loans,  for perpetuating corruption and the poverty of people we want to help.

Actions are needed here if we are to help development, encourage fair markets for clean trade, not waste resources, and not make a dishonest living from laundering in a rich country the proceeds of corruption in a poor one.

I was British High Commissioner to Kenya between 2001 and 2005. Kenya was my last, as it had been my first post in 1970. I had also been HC in Uganda (non-resident in Rwanda and Burundi) in the 1990s. That gives you my context, so to speak.

Kenya, in 1970, was one of Africa’s best-run countries.

Ugandans had black Africa’s best university and its best educated elite; together with traditional political structures of unusual sophistication. Its economy was larger than Malaysia’s.

These recollections came back when I heard in April that Daimler-Benz had been fined $185 million in the US after admitting bribery of tens of millions of dollars in 22 countries between 1998-2008. That timescale leaves a lot of earlier business unexamined. But I am sure that the name of a new tribe was first identified in Uganda in the ‘60s and spread round the continent and indeed the world: the Wabenzi (’people of the Mercedes Benz’). Mercedes Benz cars have transported a lot of thoroughly evil people in the last fifty years, feeding their sense of self-esteem and of entitlement. Bad people used other cars, too. But the symbol of supreme power, personal wealth and unconstrained showing off was the Mercedes, and specially the 600. Their marketing and purchase has often been dubious. A relatively minor misdemeanour among General Samuel Doe’s many and great ones in Liberia was his purchase of sixty $60,000 dollar Mercedes. It is not melodramatic to say that part of Daimler Benz’s payback has been in blood.

In Kenya, Uganda and Rwanda, development went backwards in political and economic terms in the 40 to 45 years between my first acquaintance with the region and my more substantial engagements with them all later. There are many reasons for that relative failure but in all three cases governance loomed large. And corruption was a major element.

Along with dispossession and want, came the corruption of institutions. And with the denial of services to citizens came a pervasive sense of unfairness, even in people whose expectations were low and whose tolerances were high.

For excellent illustrations of how societies can fall apart under such pressures read the FT’s Michael Peel’s “A swamp full of dollars” about Nigeria; and Tim Butcher’s “Blood River”. In the summer Penguin will publish a book by Greg Mills called “Why Africa is Poor”.

All the countries to which I was accredited from Kampala from 1993-7 had been or were failing states. Kenya, which had not failed, was a back marker on both political and economic reform, and went on and off track on a biannual basis. But it had, as it continues to have, the largest economy in the region, the best-educated and purposeful people.

Ringing in my ears still is a World Bank report, now 13 years old. But I don’t think its conclusion has been improved upon. I quoted it often: it showed a clear negative correlation between the level of corruption, as perceived by business people, and both investment and economic growth. Where corruption was highest and the predictability of payments and outcomes lowest, investment averaged 12.3% of GDP; where corruption was low and predictability high, the ratio was 28.5%. The same research showed that countries which reduced corruption and improved their rule of law could increase their national income by four times over a long run and reduce child mortality by as much as 75%.

The other negative impacts of corruption included aggravating income inequality and poverty; lowering investment and retarding growth; reducing the volume and effectiveness of development assistance; and discouraging domestic saving. Bent procurement processes led to low quality infrastructure; increasing and unpredictable transaction costs; and, of course, the deviations involved in selecting national priorities not on the basis of an Economic Recovery Strategy but on the basis of what pays well in hidden kickbacks which can be concealed somehow in the national budget.

A universal example familiar to travellers on Africa’s roads is the problem of bad maintenance and dangerously overloaded vehicles. An investigation by the Nation of Nairobi in April 2007 found that transport companies offered huge bribes to officials to ignore weight restrictions on vehicles. The result was more accidents and heavy damage to the roads themselves. An EU consultancy reported that a lorry carrying double the legal load causes 60 times more damage than one carrying a legal load. 35% overloading reduces a road’s life by 50%.

By roads we find our way to ethnic politics. Roads are the largest single item in the Kenyan budget (15% between 1965 – 99). A study presented at a World Bank conference in January 2009 (‘The political economy of roads in Kenya’) examined the question of whether leaders favoured their own in allocating road investments. It found that around one-third of the construction of paved roads could be explained by political-economy factors: the President’s own home district got five times as many paved roads as other co-ethnic districts. This week, the Financial Times reported that Nigeria had cancelled a $450m contract for a new runway at Abuja, because there were suspicions that the procurement process might not be above suspicion. And, by the way, some runway!

Politicians’ promises are widely distrusted more or less everywhere. Governments find inconvenient things which in opposition they pledged to do.

The new Kenyan government elected in 2002 set up an elaborate anti-corruption mechanism. And then it tried to neuter it. It counted without that rare phenomenon, a person who believed that his job description meant what it said and declined to be subverted, browbeaten or deflected from doing it.

The government also set up an inquiry into Kenya’s largest-ever single scam – Goldenberg. This scheme involved the payment of export subsidies on gold and diamond exports. Gold is a commodity of which Kenya has little –but certainly more than diamonds, of which it has none. This scam and these payments cost the country up to one billion dollars over a period of seven years or so – or 10% of its GDP. The inquiry identified a number of people whose role needed investigation. None of them has been investigated, including the then Vice-President and Minister of Finance. Indeed, the Constitutional Court gave him lifelong immunity in 2006 from further investigation.

This is a striking example of the prevailing culture of impunity. Within it people can misbehave with astonishing confidence that they won’t be caught or, if they are, won’t be brought to book or even questioned.

But the new government, full of its reforming zeal, was to be found incubating its own scandals. These comprised continuing fraudulent deals it had inherited, and signing up to new ones. They acquired the generic name Anglo-Leasing after a brass plate in Liverpool which purported to be the headquarters of that “household name”, Anglo-Leasing and Finance Limited.

And that brings us to another important part of the culture: the durability and continuity of the corrupters, who cope easily with changes of government and personnel.

This saga is well told in Michela Wrong’s book “It’s our turn to eat”. This phrase was the one used by ministers – his colleagues in government, and supposedly his allies in the attack on corruption – to try to seduce Githongo away from his duty as the President’s adviser on corruption to join them in their ethnic conspiracy to rob the treasury blind.

What got me involved was the realisation that a lot of evidence was in fact available, but that the government would make strenuous efforts to conceal it. The corrupt also argued that the crime of stealing on this scale was victimless; no-one in particular suffered – ‘whose goat have you eaten?’

I realised that Kenyan citizens, its businessmen and foreign businessmen, bankers, investors and development aid givers surely all had a common interest in cutting out graft. They were the victims. It was all our goat. Corruption put up all transaction costs. It denied services and infrastructure which Kenya could have afforded, because the money was diverted. It made donors complicit in providing through our aid budgets compensation for funds displaced from the treasury through theft. Equipment was ordered not because it was needed, nor because, if needed, it was the best at the price. It was ordered because it offered the highest rent to the corrupt in government. The challenge was whether the BHC could get that point and his right to make it supported by the public against their corrupt rulers. The Nation’s cartoonist, GADO, drew a famous cartoon describing the objections some took to my speech in which I said a corrupt government appeared to think we would not notice or mind if their gluttony in stealing public funds caused them to vomit all over our shoes. The shoes of all of us, incidentally, not just donors’; and including the feet of those without shoes. Not just members of the Kenyan elite, but in Whitehall, too, some found my campaign discomfiting. On the whole, many more others reacted positively to it.

What emerged from this campaign were some disturbing, repeated themes:

1. The existence of several different forms of corruption. Besides the familiar, financial form, were nepotism, abuse of authority and the corrosion of institutions. These characteristics undermine meritocracy, trust between colleagues and within and between businesses. They distort the flow of credit. They corrode confidence in the law’s capacity to offer fair and reasonably prompt legal recourse. They corrupt public security. They call into doubt a state’s credibility as a reliable international partner: for example, land-grabbing in the Mau forest places Kenya in breach of international agreements on environmental protection to which it is a party, as well as of its own domestic law.

2. The multiplication of levels of graft: the grand corruption of looting on the Goldenberg or Anglo-Leasing scale marches with petty corruption. This is the daily form of bribe-taking which get in the citizens’ hair. It adds insult to injury.

3. What the World Bank, in a report just out, titled ‘Silent and Lethal’, calls ‘quiet corruption’. This directly affects poor people by denying them services they are entitled to expect. Examples: in Uganda, teachers absent 27% of the time; in Chad, only 1% of aid given for health is actually delivered at the grass roots.

4. Perhaps of greater direct interest to you are the Bank’s findings  about perceived corruption in 35 sub-Saharan African countries under three heads:

    • The percentage of firms expected to make informal payments to get things done: Kenya was fifth worst at 79.22%(above Mauritania, Burkina Faso, Congo and Guinea) and the worst Anglophone country
    • Percentage expected to make gifts to get an operating licence: Kenya was eleventh worst at 28.75%; and of Anglophone countries only Nigeria and Liberia were worse.
    • Percentage of firms expected to make gifts to get government contracts: Kenya was ninth worst at 71.2%; and the worst Anglophone state

5. Politics is itself graft-dependent. Ethnic politics are practised. Their major purpose is benefit to self, then family and clan, then tribe and district; and finally – if anything is left – the nation. The cost of fighting elections leads to candidates incurring debts and seeking backing in return for promises of future repayment in kind. These debts reinforce the desire to enjoy the fruits of office as quickly as possible, lest they are taken away at the next election. Ethnic politics and democratic elections are themselves drivers of corruption, therefore.

6. The sums involved in grand corruption are huge. I was cautious not to quote numbers unless I could support them confidently; and I tried to translate their cost from the meaningless rows of ‘zeroes’ into quantities of things people wanted. The sum I first cautiously mentioned in 2004 was later shown to be a fraction of the true cost of Anglo-Leasing. But I calculated that it alone could have  -

    • Covered twice over the government’s budget deficit.
    • Or perhaps enabled it to cope with its citizens’ need for famine relief.
    • Or built 15,000 classrooms, meeting half the Ministry of Education’s requirement.
    • Or bought 1,000 Mercedes S350s (for those wabenzi!)
    • At the lower end of the scale of opportunity costs, just two- fifteenths of the sum – Shs 2 billion – would buy 10 million double size treated bed nets: their availability would save 130,000 child lives lost to malaria.
    • The same sum equalled the pre-tax profit made the previous year by Kenya Airways – the Pride of Africa; or just under twice the tax (Shs 1.12 billion) paid by one its most successful exporters; or ten times the social expenditure of another very successful company.
    • It would have been enough to buy the vaccines to immunise 43,000,000 children.  Or enough to feed a hot lunch to 1,500,000 school children for a year.

7. The Kenyan Public Accounts Committee reported in 2006 that the cost of the 18 Anglo-Leasing dodgy contracts amounted to a touch under 400 million dollars plus a touch over 300 million Euros. I reckoned the cost of petty corruption might be $140 million in 2004. A year later I revised this to $388 million, based on Transparency International’s bribery report. The figures are probably underestimates. The real significance of petty corruption is that it is an extra and illegal tax levied for the performance of a service – or the withholding or foregoing of one – which ought to be performed. And it is paid by ordinary people. Bribery cost a month’s average wages for every household. It offends. In a society of growing inequality it makes the citizen’s life intolerable and aggravates a sense of unfairness.

8. The devices used to extract public funding for nothing were breathtakingly cheeky, because people believed they would not be found out. The old familiar names of past scams cropped up again, like the people who supplied jeeps from India for the police, which didn’t work. One of my collaborators and I wrote a pastiche of T S Eliot’s Hidden Paw, Macavity the Mystery Master Criminal Cat, about these big corrupters. The Public Accounts Committee later mentioned their names, as I could not, back then in 2004/5. A sharp-eyed friend in Nairobi, who remembered the pastiche of ‘Macavity’ five years ago, sent me a clipping last month showing one of the references in the poem going from strength to strength.  Another reference in the poem is in the news as a star convict in the just-concluded Union Carbide trials in India. The real villain in that piece is still at large. With luck, the media – and cartoonists like GADO – keep reminding us of these less savoury associations of the rich and famous. Each time their PR departments put out some laudatory statement about their business success or charitable good works, someone will remind us that their reputations have a dubious side.

But such deliveries of goods not fit for purpose, or even non-existent, over-invoiced and involving payoffs up and down the chain are not funny. The police, for example, couldn’t get to crimes because their vehicles didn’t run.  And if they did, they had no fuel in the tank.

In my speech presenting my corruption dossier, I mentioned a ship which was on order but which the Kenyan defence authorities denied knowing about.

I thought of the ship again the other day when the Nation of Nairobi reported that the Kenyan government was locked in negotiations with Astilleros Gondan and Euromarine Industries about payment for that ship. The Nation said the contract awarded back then was for nearly 52 million Euros. That will be some negotiation as the government tries to disentangle itself from the deal. The same report incidentally asked questions about eight Chinese-built helicopters delivered in January but still to make their maiden flights. Clearly, there are good journalists following through on businesses the government would prefer not to be publicised.

Again, the Financial Times reported the other day police investigations of companies here producing useless bomb-detection kits and flogging them to place like Iraq and Afghanistan and elsewhere, where their deficiencies could cause danger or death. If fraud is proven I hope none of the kits were sold in Kenya: one of the good things Britain has done in recent years is helped in training Kenyan peacekeepers in the dangerous and noble art of bomb-disposal.

The lethal characteristic of all this is that government procurement is in the end driven by the old networks of corruption, not by what is needed or works best.

Two things emerge from the stories above. Apart from proper parliamentary scrutiny, an alert media is essential for follow-through. The good thing about Kenya’s is that it is pretty good and independent.  The Nairobi Nation’s cartoonist, GADO (Godfrey Mwampembwa, a Tanzanian) is remarkable for creating and sustaining a recognisable family of corrupt animals over six years (so far).

The other point is that security and defence budgets are good places to look for corruption, and people are now doing so. African countries try to cover defence budgets in a blanket of secrecy. The whole sector comes under the President’s direct authority in Kenya. According to SIPRI, Kenya’s was the third largest defence equipment budget in Africa last year, after S Africa and Angola, at Shs 45 billion (about $580 million at current exchange rates): there is a lot of room for loose accounting in there. Let’s hope the kit is fit for purpose.

The Office of the President is also the repository of major funds for such global campaigns as malaria, tuberculosis and AIDs, and for disaster relief. Enough said. One of Ugandan President Museveni’s former ministers and his former head of intelligence found himself in court a few years back charged with abuse of office, theft and embezzlement of about $500,000 from funds intended for immunisation.

In 2004, the day after I made my vomit speech, President Kibaki launched an appeal for famine relief. A journalist unkindly asked him whether, if his government was not so corrupt, it could not have fed its own hungry people without the humiliation of handing round the begging bowl to donors.

The story is repeated every few years: as famine looms, a scandal breaks over speculation in the country’s maize reserve followed by an emergency in which the pilfering of that valuable granary becomes a clear cause of death and malnutrition.

There is a long way to go, certainly, but the evidence is that the assumptions underlying a culture of impunity and forgiveness – may be changing.

Following the Anglo-Leasing revelations, audits and new procurement rules were established for defence. Some civil servants and ministers were suspended. The two most significant ministers involved were dropped by Kibaki and then, in the elections of 2007, by their constituents. Between 20 – 30 leading Kenyans are now banned from this country.

The point is that bribery is becoming riskier, even in places where the environment still favours corrupt practices. In April, in Afghanistan, a British security manager was found guilty of bribery, fined and imprisoned for two years. He might have expected or assumed kinder – perhaps fairer – treatment from the courts of a country we are so heavily engaged in trying to help. [*editor's note: He was later freed after an ordeal few of us would like to endure]

But the Kenyan ruling elite still have a large joint interest in sustaining the system which they hope will benefit them all in turn.

In a country whose governance is as rotten as Kenya’s, the domestic or foreign investor or businessman must move with extreme care. Trust and confidence are scarce. The law may be no protection.

The risks of discovery and pursuit are growing. Their ramifications may be unexpectedly extensive. The De Puy judgement in April here against Robert Dougall was the first jailing of a UK executive for bribery. It damaged Johnson and Johnson, the parent company. It showed the Greeks – the customers for their products – they were overcharged twice for medical equipment. It also revealed tax evasion by Greek doctors. These aspects helped fuel Greek public anger in the recent meltdown of their economy.

The major donors – agencies and countries – are getting slightly less squeamish about addressing the corruption question as part of governance. DfID recently announced that their entire budget for support of education in Kenya would be diverted away from government, following the Kenyans’ failure satisfactorily to resolve the loss of under £1 million of British aid money last year.

The first successful prosecution of a British company – Mabey and Johnson – for bribery overseas, in Iraq, Ghana and Jamaica – was in September last year.

BAe Systems were prepared to pay a huge sum in plea bargains with the US Department of Justiceand a much smaller one to our own SFO – in respect of their own bad business practices in a number of contracts over the years. The size of the fine showed how keen they were to avoid further scrutiny of their business practices. But the deal will not quickly or entirely expunge the whiff of dirty dealing.

Our own UK Bribery Act 2010 – which became law just before the election and will be enforced from October – will attempt to put right the poor record of inaction against bribery by British companies overseas, that earned us rebukes from the Organisation for Economic Co-operation and Development (OECD). [*editor's note: The date of implementation has been put back six months, to April 2011, to follow a previously unscheduled consultation exercise]

The risk of damage to reputation is a deterrent, even or especially to those believed to be involved in the most serious cases of corruption. We should note the unexpected corollary of OECD’s criticism in 2008, which was that foreign firms would have to be extra careful in dealing with British companies because of the fear that our weak anti-bribery regulation might spread a contagion of corruption to business partners.

Finally, the costs to African countries of illicit financial outflows are mind-bending, probably making Africa a net creditor, contrary to the notion of debt relief campaigners. Illegal outflows outstrip legal financial outflows.  A report in March ‘Illicit Financial Outflows from Africa:  Hidden Resource for Development‘ by a body called Global Financial Integrity (GFI) found that in Africa, in the last 39 years up to 2008, the total value of all such illicit outflows was perhaps $1.8  trillion. They grew at an average 11.9% per annum over the period.

The figures for sub-Saharan Africa far exceed Africa’s external debt: if that debt had been paid off, there would still have been at least $600 billion left over for development.

The Report says:

“This massive flow of illicit money out of Africa is facilitated by a global shadow financial system comprising tax havens, secrecy jurisdictions, disguised corporations, anonymous trust accounts, fake foundations, trade mis-pricing, and money laundering techniques. The impact of this structure and the funds it shifts out of Africa is staggering……… It has its greatest impact on those at the bottom of income scales in their countries, removing resources that could otherwise be used for poverty alleviation and economic growth.”

It is unlikely that Africa’s governance will cure itself of corruption unless its rich donor partners clean up their own act.

Ms Ngozi Okonjo-Iweala, a former Nigerian Finance Minister who is now heading a World Bank-United Nations joint project on recovering looted state assets, called the other day for 4 G20 back markers – Germany, India, Japan and  Saudi Arabia – to back the UN Convention Against Corruption as part of a wider crackdown on looted money.

Part of our effort must be to tidy up the shadowy bits of the global financial system; part of it is to be more rigorous about the financial management and probity of governments we give money to, through our taxes and our NGOs. More can mean worse, and less for the poor people we say we want to benefit. I hope the new International Development Secretary and his Treasury colleagues will think about that; and about the oddity of aiming to spend more on assistance until we can be confident we can administer what we spend now to the standards demanded of British public expenditure in other sectors.

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By Edward Clay KCMG, lately British High Commissioner to the Republic of Kenya

Delivered first on Friday, 11 June 2010 as a Talk in the Old Library at Lloyds, the Insurance market, London, England

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[slightly abridged and edited by CEO]

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