On whose behalf and interests did Mubea act?

While the present case focuses on Jacques Pitteloud for allegedly demanding a Sh5.4 billion bribe, it has a second part to it which is related to Kenyan anti-corruption officials.
It reveals how top officials of the Ethics and Anti-Corruption Commission (EACC) were working in parallels to each other over the issue of Anglo-leasing settlement by Deepak Kamani.

In claiming to state the Kenya government’s position over Anglo-leasing settlement, EACC deputy director Michael Mubea said that if the Kamanis were willing to settle, that could be looked at and that if Pitteloud said that he could make that happen, that the same would be acceptable.

The proposal to settle the matter was communicated to Kamani’s advocate by Mubea in his official capacity as EACC deputy CEO through a letter in November 5, 2014.

In the letter, Mubea, who is still at Integrity Centre in the same position, requested to be furnished with a proposal for his perusal and reaction.

However, Mubea’s request totally contradicts the position of former EACC chairman Mumo Matemu who was forced out in 2015.

Barely five months after Mubea’s communication and in a letter dated February 13, 2015 and addressed to Kamani’s lawyer, Matemu stated: “…For avoidance of doubt, we wish to inform you that the Commission has not and will not discuss or sanction discussions relating to negotiation and/or settlement of these matters at this point.”

The contradiction raises a serious question as to whether or not the Deputy CEO, in communicating government’s willingness to negotiate, was acting without the knowledge whatsoever of his chairman.

In fact, Matemu authoritatively stated that the Commission has never had any discussion for a negotiation in the Anglo-leasing related cases.

Apparently, the EACC Chairman was not even aware of the former Swiss Ambassador’s alleged EACC-instructed “plea bargain” proposal for a Sh5.4 billion settlement.

It would therefore be interesting to see the written communications between Mubea and Pitteloud, if any, where the former requested the Swiss Ambassador to proceed to a plea bargain on behalf of the EACC.

What however emerges is that although Pitteloud claims he was mandated to demand money, the Attorney-General of Switzerland, the Federal Prosecutor of Switzerland, the Attorney-General of Kenya, and the Chairman of the EACC were all in the dark of his actions.

Not even the Asset Recovery Agency (ARA) was aware of any plan to recover such a large sum of money from the Anglo-leasing suspect.

Inconsistencies

No confirmation to date has been made by the Attorney-General, who is the contact person between Kenya and Swiss authorities, as to whether his office ever authorised Pitteloud to demand $55 million from Kamani, much as it is known that such settlements are handled by EACC and ARA.

Even if one were to assume that the demand was a plea bargain and not a bribe as alleged, would this demand by SMS and private meetings at Kamani’s home by the former Swiss Ambassador qualify as a plea bargain?

Under the Kenyan legal system, a plea bargain is a creation of the Criminal Procedure Code under Section 137, described as a Plea Agreement Negotiation. Only the Prosecutor and the accused person or his representative can be party in a plea bargain.

A plea bargain has to be regulated by legal procedures. In absence of these plea bargain legal procedures, it would be deemed to be a private demand, which could be construed as bribe.

Section 56B of Anti-Corruption and Economic Crimes Act provides as follows in respect of a plea bargain:

“In any matter where the Commission is mandated by the Act or any other law to institute civil proceedings or applications, it shall be lawful for the Commission to issue a notice or letter of demand to the person intended to be sued, and may in such notice or letter, inform the person about the claim against him and further inform him that he could settle the claim within a specified time before the filing of court proceedings”

Therefore any bargain must be commenced by a letter of notification to the person to be sued. Would that mean a text message from Pitteloud to Deepak Kamani amounts to an issuing of a notice as contemplated in the Anti-Corruption and Economic Crimes Act?

This development as well raises some pertinent questions that Mubea must respond to: Why was he apparently aware of such a lucrative deal whereas his own commissioners were not? Was Mubea one of the ‘friends’ Pitteloud was referring to in his threatening mobile messages? Why did EACC refuse to enter settlement discussions yet Mubea is saying he authorised Pitteloud? Does he have authority to instruct a Swiss ambassador directly and why did Pitteloud act on his verbal instructions? Why is there no paperwork to show that he (Mr Pitteloud) was authorised to act as he did? ^

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