Playing dirty: Court of Appeal ‘in the mix’

To defeat a motion that could have potentially stopped gov’t and Safaricom in their tracks, Appeal Court judges schemed with lawyers to bring forward a judgment without informing Tetra Radio

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TNLM writer

In a move that shocked the legal fraternity, the Court of Appeal last year sanctioned the award of a controversial Sh45 billion contract to Safaricom. In doing so the Court brought forward its judgment by more than a month in order to fit the judgment date into a time frame critical to Safaricom.  The action of the Court of Appeal has completely ruined the credibility of the Court and the entire judicial system of Kenya. The Chief justice has ordered investigations into the circumstances leading to this brazen act of interference with the independence of judiciary after one of the parties wrote a scathing complaint to the Chief Justice.

The matter is now headed to the United States Department of State where the aggrieved party has lodged a complaint with the US government under the Foreign Corrupt Practices Act. The Serious Fraud Office of the United Kingdom is also investigating the matter against Safaricom’s parent company, Vodafone.

On July 29, 2015, Tetra Radio Limited appeared at the Court of Appeal to defend an appeal lodged by the Communications Authority of Kenya. Tetra Radio Limited was represented by renowned lawyer Pheroze Nowrojee while the CA was represented by lawyers Mohammed Nyaoga and George Oraro.  The appeal was argued and judgment was reserved for delivery on the 6th November, 2015.

When Tetra Radio Limited attended court on the appointed date of November 6, 2015, the matter was not listed. Upon inquiry from the Court of Appeal Registry, Tetra Radio Limited was informed that the judgment had been delivered on the September 25, 2015!
That is when the scandal, which is certain to cause the total implosion of the Court of Appeal, started to unravel.

A perusal of the Court file shows that CA’s lawyer Mohammed Nyaoga appeared in Court on the September 25 last year but Tetra Radio Limited is shown as not being represented. The Court file does not indicate any reasons why the judgment had to be fast-tracked. No notice was issued by the Court to the parties to attend this accelerated court judgment on the new date. A Registry official later confirmed that he was directed to call the CA lawyer the evening before the judgment was delivered but not to call the lawyers of Tetra Radio Limited.

After surreptitiously procuring this premature judgment, Safaricom moved to demand the fruits of the judgment, leaving no doubt as to who facilitated the fast-tracking of the judgment.

Tetra Radio Limited’s complaint to the Chief Justice reinforces the notion that Kenya is a bandit economy. Tetra complains that the bringing forward of the judgment date was a well-orchestrated plan by Safaricom to obtain the prime 4-G frequency spectrum.

After the hearing on July 29, 2015, Safaricom demanded that the 800 MHz 4-G frequency spectrum be allocated to it immediately.  The CA resisted this attempt asserting that there was a subsisting court case in the Court of Appeal involving Tetra which directly affects the same frequency spectrum. However, Safaricom went straight to the Presidency where the CA were summoned and directed to immediately release the frequency to Safaricom, a directive which the CA refused to obey; instead, the CA decided to publish a gazette notice dated the August 21, 2015 indicating that Safaricom had applied for a frequency license in the 800 MHz Bank. The CA had all along objected to Safaricom’s pressure and Safaricom’s use of political pressure to intimidate the CA into awarding Safaricom precious 4-G frequency spectrum without a competitive process and without due regard to other industry players. Safaricom wanted the entire spectrum to be exclusively allocated to it.

Clever manoeuvre

This was a clever manoeuvre by the CA to fend off pressure from the Presidency and Safaricom. Once such a notice is issued the provisions of the Kenya Information and Communication Act kicks in requiring that the public and any affected person has 30 days to lodge objections as to why the license should not be issued.

This was the signal the CA was sending to Tetra and the other telecommunication operators to lodge their protests. Immediately the Gazette notice was released, Tetra, Airtel and Orange vigorously objected. Tetra’s objection was by far the strongest protest as there was a pending case at the Court of Appeal touching on the same issue. Tetra further protested that the proposed award amounted to a “sweet heart” deal to Safaricom and its partner Huawei for the single-sourced and corrupt Sh45 billion security communication contract and that this was “further confirmation that the CA has ceded its statutory regulatory mandate under the Act to a powerful licencee exercising political patronage to aid it its private business dealings.”

Tetra further protested saying that there was “a clear conflict, which is not only detrimental to industry generally but amounts to a fraud on the Kenyan public. A fraud on the Kenyan public because Safaricom’s alter ego, Vodafone, recently lost business in the United Kingdom to provide security and emergency communication service after an open tender in which Vodafone was adjudged to have been too “costly and inflexible.” The UK government by undertaking this open tender was able to realise “significant cost savings for the taxpayer, possibly by up to £1 billion (Sh143 billion).” That is the international best practice Safaricom has applied in its own home territory.  It is an imperative dictated by public administration precepts in the United Kingdom.  In Kenya, the CA, Safaricom and Huawei have allowed naked private commercial interests to prejudice the public good. We submit that this goes against the dictates of Article 10 of our Constitution.”

Tetra’s objection combined by the objections of Airtel and Orange meant that Safaricom could not achieve its desired goal of having exclusive access to the 800 MHz frequency band. Obviously Tetra was standing in the way of Safaricom having its way.

The period within which the public were allowed to object to the Gazette Notice having been issued on the August 21, 2015 was due to end on the September 20, 2015, after the 30 days allowed in law.

Tetra’s complaint to the Chief Justice asserts that there is “little doubt on our part as to why the judgment was brought forward and hurriedly and prematurely delivered. It was intended to facilitate the grant to Safaricom and Huawei of prime and much sought after frequency spectrum, which had been corruptly promised to Safaricom and Huawei on what ranks as Kenya’s corruption scandal, eclipsing by far both the Goldenberg and Anglo Leasing scandals.”

Tetra further complains to the Chief Justice that “clearly Safaricom and Huawei procured and ensured that the judgment in our case, Civil Appeal 121 of 2012, was delivered at the first opportune time after the expiry of the gazette notice period so that the process for the award of the frequency licence aforesaid could begin. September 25, 2015 was the first Friday (given that the Court of Appeal only delivers rulings and judgments on Fridays) after the said September 20, 2015 when the gazette notice period expired. The bringing forward and therefore the premature delivery of the judgment was clearly a well-orchestrated plan to facilitate the consummation of the controversial contract between Safaricom/Huawei and the Government of Kenya.”

Hush it up

It was clear that the judgment was brought forward in order to nullify Tetra’s objection. It was meant to allow Safaricom resist objections by Tetra which now would be shown by Safaricom as having lost its case in the Court of Appeal leaving no obstacle to it being awarded the prized 800 MHz frequency.

To illustrate just how powerful Safaricom was using political influence in the matter, Tetra protests that “our formal complaint to the Ethics and Anti-Corruption Commission [Annexure 3] has been ignored and our representative has been informed that the Commission has been “directed” not to investigate this scandal or deal with our complaint whatsoever.”

The Chief Justice has yet to forward the matter to the Judicial Service Commission and Tetra intimates that there is already a cover-up being planned in order to keep this matter hushed up.

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