Smith & Ouzman directors’ crime goes beyond ‘chicken’ offer to election officials

David Green CB QC, Director
Serious Fraud Office,
2-­4 Cockspur Street
London
SW1Y 5BS

Dear Mr.Green,

Kenyans for Peace with Truth and Justice (KPTJ), a coalition of more than 30 legal, human rights and governance civil society groups would like to commend UK’s Serious Fraud Office (SFO) for the successful prosecution of Smith & Ouzman, and two of its directors for overseas corruption, including the bribery of Kenyan election officials to obtain contracts for printing of poll materials.

We write this letter to give our perspective on the impact of corruption on elections. We do this in the hope that you will bring these matters to the attention of the court so that they may inform its deliberations on the sentencing of the directors and the company and the subsequent confiscation hearing.

We would also like to strongly suggest that the SFO call expert witness on this point so that the court can be fully informed about it. We would be happy to provide relevant names of experts in this area should the SFO need such assistance.

KPTJ was formed in the wake of the widespread violence that engulfed Kenya following the disputed 2007 presidential elections.

More than 1,100 people were killed, over half a million displaced from their homes, hundreds of women and men sexually assaulted as well as property worth billions of shillings destroyed in the chaos.

Kenya was saved from a full-scale civil war only by international mediation efforts led by former UN secretary-general Kofi Annan.

The mediation agreed on a raft of measures to address both the immediate crisis and the long-term underlying issues to bring permanent stability to the country, including constitutional and institutional reforms.

A commission of inquiry appointed to review the elections recommended a complete overhaul of the electoral process, including the disbandment of the then Electoral Commission of Kenya (ECK) and a fresh registration of voters.

The ECK was replaced by the Interim Independent Election Commission, the body whose officials Smith & Ouzman subsequently bribed to obtain business from.

The above background is important in order to demonstrate a number of key points.

First, both Kenyans and the international community invested a lot of time, money and hard work to ensure that the devastating political violence of 2008 would never occur again.

This was done through reforming the election management body and the appointment of new commissioners, among other measures.

For Smith & Ouzman to casually bribe the new poll officials and justify it by claiming that they were just doing business the “African way” is not just an insult to Kenyans and Africans, it is to dance on the graves of those who paid the ultimate price due to the failed elections.

Second, Kenya has frequently paid a high price in terms of lives lost and property destroyed as a result of disputed elections, the post-election violence being only the most extreme example.

Political violence in turn is often the direct consequence of having elections managed by officials of questionable integrity who cannot be trusted to deliver a free and fair election.

When Smith & Ouzman bribes poll officials to obtain contracts for printing election materials, the country not only incurs financial loss due to the inflated price, but also it ultimately pays a much higher price in terms of the loss of integrity of the electoral body and the subsequent instability and political uncertainty that the loss brings.

As far as financial consequences are concerned, it is notable that Kenya’s elections have been said to be among the world’s most expensive per capita, in spite of their generally poor quality.

Third, an election body, like a bank, survives on public trust and derives legitimacy and credibility not from the technical sophistication of their poll materials, tools and procedures, but from public faith in its impartiality, competence and integrity.

The bribery claims against Kenyan poll officials has resulted in loss of public faith in the agency and may lead to disputed elections and violence in future.

In determining the financial gain that Smith & Ouzman obtained by fraudulently and what the Kenyans lost as a result, the court should bear in mind not just calculations based on the 2010 referendum and by-elections, whose printing contracts were the subject of the prosecution.

It should also consider the printing contract for the 2013 General Election which was also awarded through direct procurement to the firm by the same officials.

The latter contract was the subject of litigation in Kenyan courts by legitimate competitors who alleged that they had been unfairly denied business in favour of Smith & Ouzman.

The money that Smith & Ouzman has been found to have paid in bribes may be relatively small, but the long-term impact of the crimes, for which the firm and its directors have been convicted, is devastating to the development of a young democracy like Kenya.

Kenyans are the ultimate victims of this abominable crime. In ordinary circumstances, any financial penalties levied against Smith & Ouzman would be paid directly to the Kenyan government.

However, the government has in the past proved to be one of the most corrupt in the world, frequently ranking poorly in the Transparency International Corruption Perception Index.

FINANCIAL PENALTIES

Such is the tolerance towards corruption in the Kenyan government that, despite the conviction of Smith & Ouzman directors, the Independent Election and Boundaries Commission officials named as having received the bribes are still holding public office.

The government also recently authorised payment of millions of dollars of taxpayers’ money for a passport printing system and forensic lab that were never delivered in the infamous Anglo Leasing scandal, through which Kenya lost some $770 million, which your office is also aware of.

Given that the government has done nothing to hold to account the election officials implicated in the Smith & Ouzman bribery case, it is our opinion that giving the money directly and unconditionally to such a government would amount to little more than sending it back, if not to the same people who colluded with the firm to steal from the Kenyans and undermine their electoral process.

We recommend that whatever financial penalties are levied upon Smith & Ouzman and its directors should be given to the Ethics and Anti-Corruption Commission to strengthen its war on graft and deter such crimes.

We look forward to your confirmation that the matters we raise in this letter will be placed before the court for its consideration during the sentencing and confiscation hearing.

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