The Swiss Ambassador

Details of text messages by former Swiss ambassador in Nairobi Jacques Pitteloud to a corruption suspect in Kenya read like a fictional novel.

Often held in high moral regard, the kind of text messages sent by Pitteloud to businessman Deepak Kamani who, along with Sri Lanka-born billionaire Anura Perera, was among those charged in the 18 multi-billion Anglo-leasing contracts in Kenya, have all but dismantled the high pedestal western envoys often assume as prefects to African governments on good governance.

On June 29, the Swiss Federal Tribunal in its judgment before the Federal Penal Tribunal ordered the Swiss Federal Prosecutor to open a criminal investigation on the former diplomat an alleged bribery and coercion plot involving businessman Kamani.

The text messages reveal the dirty underhand deals by Pitteloud, demanding to be paid a mindboggling $55 million (some Sh5.4 billion at current rates) in order to influence the corruption investigations against Kamani.

While the first problem is the demand itself, it is also the tone of the messages, which Swiss authorities have termed as coercive, that makes the entire scheme dirtier.

The allegations against Pitteloud, a career diplomat and who ironically currently heads the Swiss foreign ministry’s directorate for securing and managing resources, stems from allegations during his stint as Swiss ambassador to Kenya from 2010 to 2015.

In the text messages, Pitteloud privately approached Kamani to pay the Sh5.4 billion so that he could talk to his “partners” to “hold their horses.”

Kamani and Anura Perera have since 2004 been under investigation for being suspects] in the 18 grossly overpriced state security contracts worth a combined $770 million (Sh76.6 billion at current rates), made with several foreign and domestic entities.

The scandal, which came to light in 2004, almost brought down President Mwai Kibaki’s Narc government as local and international pressure mounted on his two-year regime. Eventually, President Kibaki was forced to let go of former Internal Security minister Chris Murungaru and former Finance minister David Mwiraria even though they denied the accusations levelled against them.

Former Vice President and then Home Affairs Minister Moody Awori also denied any wrongdoing and somehow survived the purge.

According to court records filed both in Kenya and Switzerland, Pitteloud’s first interaction with Kamani was through a phone call made on the May 23, 2014 requesting for a meeting. This was thereafter followed by constant text messages from the ambassador to Kamani.

On Thursday May 23, 2014 – the same day the first contact was established – Pitteloud sent the following text message to Kamani: “Dear Kamani, I really hope what keeps you abroad is important enough to let our lunch wait until Thursday. Looking forward to meet you. Best regards, J. Pitteloud, Swiss Ambassador.”

Five days after the first text message, the ambassador sent a second text message on May 28, 2014: “I am still waiting. Clock is ticking am afraid…”

After the May 28, 2014 text message, the Nairobi Law Monthly has established that a meeting took place between the two men on May 29, 2014, and a day later sent the following message, “My partners have agreed to hold their horses until Tuesday, which gives enough time to properly assess the situation.”

The ambassador sent another text on the Tuesday June 3, 2014, the deadline his “partners” had apparently given according to the earlier text message.

On that Tuesday, he sent the following text message: “I am seeing my friends this afternoon and they have already been pushing me to get your answers as soon as possible. They seem eager to start their option, which I personally would regret very much. When can I expect your move?”

From the tone of the last two text messages, it would appear like Pitteloud was working in cahoots with some unnamed Swiss law enforcement individuals, or at least that is what he tried to portray to coerce Kamani. The May 28, 2014 text was equally menacing in tone. The June 3, 2014 text message, according to court records, appears to have been the final text message from Pitteloud to Kamani.

In a strange twist of events, June 3, 2014 was also the same day when a Request for Mutual Legal Assistance in Criminal Matters was sent from Switzerland’s Federal Attorney’s Office to Kenya’s Attorney-General Prof Githu Muigai, raising questions whether there was any connection between the text message sent on that day and the making of the Request for Mutual Legal Assistance.

Mutual Legal Assistance is basically a method of cooperation and assistance between states to enable them to obtain assistance to conduct an investigation or prosecution of criminal offences. It is generally used to obtain material information and documentation.

About three weeks after the Request for Mutual Legal Assistance was made, Prof Muigai and Pitteloud addressed journalists at the Attorney-General’s Chambers in Nairobi.

Following the address to the media, Pitteloud, in his capacity as the Swiss Ambassador to Kenya, received documents to aid the Anglo-Leasing probe from the Attorney-General.
It is also important to note that this was exactly one month from May 23, 2014 when Pitteloud sent his first text message looking for Kamani for lunch, and a payment of the controversial $55 million.

The tone of the text messages sent by Pitteloud shows clear motive on the part of the ambassador to pressure Kamani to give in. The same was clearly of a coercive nature, which according to Pitteloud was a proposal for a plea bargain. However, no reasonable person would construe the same as being one.

The Swiss courts agreed with this and in its judgment of June 29, the President of the Court of the Federal Penal Tribunal directed that the former Swiss Ambassador to Kenya be investigated for coercion charges.

“In this particular case, the documents of the file refer to messages from Pitteloud addressed to Deepak Kumar Kamani, when the former ambassador of Switzerland in Kenya, representative of Swiss authorities and that he signed in his capacity as ambassador. It must be admitted by the Appellants that these exchanges show a certain pressure from the former Ambassador of Kenya on Deepak Kumar Kamani that he proceeds with the requested payment. It is not contested that Pitteloud requested 55 Million USD from the appellants in order to stop the proceedings pending against them in the context of “Anglo-leasing” because in an article which appeared on 12 September 2014 in the Kenyan press, the former ambassador in Kenya seems to have admitted this fact,” paragraph 3.2.2 of the ruling (translated in English) states.

The tribunal goes on to state that “In the concerned article, it is specified that Pitteloud would have first intervened towards the appellants “privately” and then “have acted on the instructions of the Swiss Federal Prosecutor” and with the knowledge of the Kenyan Authorities, to invite Deepak Kumar Kamani to return the funds obtained in the context of the matter, ‘Anglo Leasing” in exchange for obtaining immunity in the Swiss investigations.”

In mitigation, Pitteloud had asserted to the tribunal that between the period of May 23, 2014 and June 3, 2014, he was privately conducting a plea bargain by demanding $55 million from Kamani through the various text messages he sent in order to deal accordingly with Anglo-leasing related cases.

It is important to note that at no point did Pitteloud ever inform Kamani that the text messages being sent were made on the basis of a proposal for a plea bargain, neither were they informed as to who authorised him, where and how the money should be paid or indeed how Pitteloud arrived at a figure of $55 million.

Furthermore, there was no express written authority from either the Swiss or the Kenyan governments regarding the same.

The Black’s Law Dictionary defines a plea bargain as “a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a less offence or to one of multiple charges in an exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges”.

The arising legal question is then raised on whether a plea bargain can be done without the knowledge of the relevant Attorneys-General or prosecutors in both countries. If so, who has the legal mandate to give instructions on a plea bargain, and did Deepak Kamani have the right to be officially informed by a written letter that the two Governments had instructed Pitteloud to conduct a Plea Bargain vide personal text messages?

The Nairobi Law Monthly is informed that neither the Switzerland’s Attorney-General’s Office nor its Chief Federal Prosecution Office were aware of this alleged plea bargain by the Swiss Ambassador. In his letter dated October 16, 2014, Jacques Rayroud, then Swiss Chief Federal Prosecutor who is currently the Swiss Deputy Attorney-General, upon a written inquiry by Kamani’s Swiss lawyer, Gerald Page, responded as follows:

“…Finally, I have well noted your allegation in your letter regarding the intervention of the Swiss Ambassador in Nairobi. As I confirmed to you in our telephone conversation some months ago, the Federal Prosecutor Office has not given any mission or instruction to the said Ambassador, as it can be shown moreover in the file you have been in a position to consult”

Pitteloud claimed Kamani had no right to be informed that the ambassador’s demands through the various text messages for $55 million were for a plea bargain, which was being conducted in private.

Though he claims Kamani had no right to know, the former ambassador makes a damning claim that everybody in both legal systems – Kenya and Switzerland – were aware that he was aiming for a deal with the Kamanis and offered them a deal which they didn’t take.
The tribunal was, however, of the view that the ambassador should have referred to the provisions of the Swiss Criminal Procedure Code, which allows the prosecutor to make a settlement with the accused. This is provided for under the provisions of the said Act.

The tribunal was cognisant of the fact that the Federal Prosecution never gave instructions to the former ambassador to intervene before the appellants, the Kamanis. In respect of this, the tribunal stated as follows:

“In these conditions, the intervention of Pitteloud needs to be considered carefully…. The fact that the ambassador seems to have made the transactional end of the criminal proceedings in Switzerland subject to the payment of an important sum of money by the appellants constitutes undeniably a threat of a serious damage. It is uncontestably an influence on the liberty of action of the appellants, exercised by a representative of the Swiss authorities, pushing them to do something to avoid a serious damage, that is, the continuation of a criminal proceeding, or to adopt a behaviour which they would not have adopted otherwise.”

The tribunal held that the mere fact that Pitteloud intervened without having received mandate from the Swiss authorities, then this intervention was illegal. He requested from the Kamanis an action in which he was not entitled to obtain.

The Swiss Federal Court invoked Article 181 Swiss Criminal Code in recommending an investigation for a case of coercion against the former ambassador. The provision provides as follows: “He who, by using violence towards another person, or by threatening them of a serious damage or by limiting in any manner their liberty of action, forces them to do, to not do, or to intervene, will be punished with a sanction of imprisonment for three years maximum or with a fine.”

The Pitteloud scandal raises several important questions, about which the former Ambassador will have to provide answers to the investigators: Why did he use threatening language and coercion if he was plea-bargaining? Why did he refuse to reveal who his friends and partners were if he was officially mandated? Why has the Swiss AG, Swiss Federal Prosecutor, Kenyan AG and EACC Chairman denied knowledge of the deal yet Pitteloud says they were all aware? Where is the communication in writing thereof? Why is a Swiss envoy negotiating on Kenya’s behalf for a Kenyan investigation on Kenyan citizens? If it was for a Swiss case, why is there no Mutual Legal Assistance request to the AG of Kenya asking for permission to plea bargain with a Kenyan citizen?

Further, where did the Former Swiss Ambassador get a seemingly arbitrary figure of $55 million? Why was the Kenyan Directorate of Public Prosecutions not involved, as is usually the case with plea-bargaining on such an important case? The Kenya and Swiss governments have to ask that if case the tables were turned, would the Kenyan ambassador in Switzerland be allowed to coerce a Swiss national into a settlement of a Swiss case?

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