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 
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:
- PCK Broadband for the Supply of VSAT and related equipment
- PCK Bandwidth for the supply of Bandwidth Spectrum
- NEXUS for the delivery of an integrated command and control system for the
- Department of Defence
- VSAT contract between Department of Defence and Gilat Alldean international
- Limited.
- Euromarine for the supply of the Naval Vessel to the Kenya Navy
- Project Flagstaff for the National security intelligence service and
- 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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