| In a matter of days, retired judge Domah would be submitting his report on what can be coined as “The Britam Affair”. Any reasonable mind would concur the millions spent on each page of the series of Commission reports could have been put to better use in a country ridden with debt and where 10% of the population live in abject conditions. |
Retired Judge Domah who has during his brilliant career shone with some landmark thoughts, often lauded in the columns of Capital, now has been offered the opportunity of carving his name in the hallmark of great truth-seekers.
The test of credibility
At a moment when Commissions of Inquiries are being described as “The art of buying time “ or the “Science of burying truth”, retired Judge Domah will first have to overcome the test of credibility of his Commission. Having lost their status and significance, the uproar against Commissions is worldwide. They have departed from the fundamentals which led to the setting up of the very first Commissions of Inquiry, following the Marconi Scandal in the First World War. The hunt for truth with action as an objective consequence has been replaced by expensive dramatic comedies. Some of the critics have settled on the fact that “human beings have genetic tendency to abuse, distort, corrupt or pervert any public institution created for public good or in public interest”.
Right from the Costigan Commission in Australia (criminal activities associated with the Dockers Union), Tehelka Commission in India (Kickbacks received in arms deal) to the Seriti Commission in South Africa (bribes in controversial multi-billion rand arms deal) and to many more in nearly all countries around the world, Inquiry Commissions are rightly perceived as government’s agency to fool the population, to protract the discovery of truth and to serve politicians’ narrow interests. Far too often setting up of an inquiry commission is solely meant to douse the fire while waiting for the fickle mind of people to forget the once hyped incident.
It is the fundamental right of the people to know and be informed. Such sacrosanct right cannot be subject to the prime minister’s whims or the government’s privilege. Moreover the fad of retaining active or retired judges to steer Commissions is in itself a serious flaw. Involvement of active judges ultimately compromise the judge’s authority, independence and legitimacy. While retaining retired judges would defeat the purpose of the lavish benefits they enjoy upon retirement, offered as a means of resisting any possible temptation leading to disrobing Justitia. Events leading to inquiries are usually multi-dimensional and require a totally different sets of knowledge far from sole mastery of civil or criminal laws. With the prime minister / government dictating the Terms of Reference and at times fielding proxies within the panel, Commissions of Inquiries will continue to be perceived as serving the government’s narrow political objectives or even worse, deployed on expeditionary missions. A situation which calls for a totally new effective, accountable and trustworthy mechanism running solely for the interest of the people.May be retired Judge Domah will be crazy enough to devote a chapter of his report on importance of introducing public inquiries ?
Despite repeated calls for the setting up of a Commission of Inquiry on the whole affair of BAI, the government has systematically refused claiming police investigations are being carried out satisfactorily and there was no apparent reason to entertain the request for a Commission. However following the resignation of Roshi Badhain, the Pravind Jugnauth urged cabinet to expressly approve the setting up of a Commission of Inquiry on the sale shares held by BAI in Britam Kenya.
Setting up of the commission of inquiry on Britam to look into the disposal of shares at an undervalued price, implies recognizing the existence of tangible and valuable financial assets thereby nullifying all accusations of “Ponzi” and “fictitious” investments by BAI. But the stubbornness to refrain from Commissioning an inquiry on the whole of BAI affair clearly depicts the political motives of the government. Britam Commission is like conducting a post mortem and focusing on the slight bruise on the leg while ignoring the savagely mutilated body.
With Sattar Hajee Abdoulah as one of the panelist, passing the credibility test would be an uphill battle and a definite handicap to the Commission. Let alone, he is the man who charged MUR 26 million for 18 days work, while former Directors of BAI were lynched for drawing one tenth of that amount as monthly salary, Satar Hajee Abdoulah is also the same person we hear in the recording released by the media who states to Dawood Rawat, “Everything they planned is out of control”. In any civilized country run by honest leaders and inhabited by brave people, the content of the recordings would have suffice to call for immediate investigations. And Sattar Hajee Abdoulah would have been amongst the first to be queried. His self-confessed connections with Pravind Jugnauth disqualifies him as an impartial and independent person. Such constraints shall weigh significantly on the shoulders of retired Judge Domah.
We do expect prior to inquiring on the disposal at an undervalued price of the shares, the commission would have studied the actuarial reports, investment plans as to enquire if the disposal of the shares was warranted and in the best interest of the state? Or were there other more logical alternatives, such as preserving the shares for future significant yields?
Other pertinent unanswered question to which the public expects retired Judge Domah through the commission to enlighten us on are :
· The purpose of frequent trips to South Africa & Dubai by two cabinet ministers in 2015 – 2016
· The reason behind reshuffling of Special Administrators
· Pressure, if any exerted on André Bonnieux to retain the services of a broker based in Johannesburg to manage the Britam deal?
· The interest if any of PWC to secure the Britam Shares for its own clients?
· The reasons pushing André Bonnieux, who contrary to his assignment sparked a mass hysteria in Nairobi leading to knock down the share price.
· The the tug of war between PWC and Roshi Badhain that led to temporary freezing of the transaction and securing of a 3 billion loan from the Bank of Mauritius?
· The role played by the Financial Secretary Dev Manraj who was well aware that MMI’s offer of 4,3 billion was far from being a joke.
· The official confirmation of resistance to the MMI bid by the Government of Kenya.
· Which firm was advising Peter Munga in Nairobi ?
· Any significant transfers to offshore accounts of several key players involved in the transaction.
· The role of Vishnu Lutchmeenaraidoo, the maestro who knew well before the 3rd of April 2015, BAI was about to take a gigantic leap with new investors moving in.
· The role of each of these big guns from the Accounting & Advisory firms, with a special focus on Afsar Ebrahim, by far the country’s busiest man since 2015.
Investigation of the role played by Peter Munga, Henry Rotich and their counterpart Dev Manraj along with the experts from BDO will retain a particular attention. Starting with the commission’s interpretation of the articles of the constitution regulating Britam. The value of inbuilt veto rights deliberately played down by Peter Munga. The manipulation of opinion leading to the belief, offer from MMI for Britam Shares was not firm. When in fact prior to happenings of April 2015, MMI was on the verge of completing a takeover of BAI.
The commission will have the opportunity to certify that Peter Munga had no right to put up a hostile resistance to the sale of shares to MMI. In fact the only evidence testified at the hearings of the commission relates to the interpretation of Sanjiv Issary on the body language of Peter Munga. The letter addressed to the Financial Secretary Dev Manraj by Henry K Rotich (Cabinet Secretary for national Treasury) on 11th December 2015 is even more damning. It certifies that at no point in time was there any mandatory obligation from Mauritius to abide by the request from Peter Munga. Nor was the request officially from the government of Kenya. The collusion between Peter Munga and Henry K Rotich is damning. On 18th August 2016, Henry K Rotich makes use of his prerogative to exempt Britam Life Insurance Company (Kenya) Limited and Britam General Insurance Company (Kenya) Limited from provisions of section 23 (4A) of the Insurance Act in respect of shareholding structure of insurance companies for a period of two years.
Back in 2015, Peter Munga stated “I invested in Britam when I was 30 years old and I would not want to see someone who is not aligned to our strategy of growing the company come in,”. Meanwhile In Mauritius then Minister Roshi Badhain and Dev Manraj kept harping, the Kenyans were unwilling to sell to foreigners. Yet, the shares have been sold to 3 foreign equity & investment funds, making Peter Munga, Britam CEO Benson Wairegi, Equity Bank CEO James Mwangi and investment banker Jimnah Mbaru achieve significant profits. Fearing such a scenario, IFC had in 2016 requested shareholders to enter into a share retention deed.
The discounted deal would not have been possible without the support of Henry Rotich, Dev Manraj and BDO. With over 100 members of parliament having petitioned an impeachment motion against Treasury Cabinet Secretary Henry Rotich on grounds of violation of provisions of the Constitution, acts of gross misconduct, and incompetence, the case of Britam needs to have a different approach with further investigation into the role of Rotich. Following the latest events unfolding in Nairobi, may be the commission headed by former judge Domah would seek the intervention of the Government of Kenya in all the actions undertaken by Henry Rotich to best serve the interest of his friend Peter Munga.
The first charge linking BAI Trinidad, stands as the evidence of the ghastly propaganda spun by the current government. Back in April 2015, Capital had been the only voice to challenge the tainted facts paraded by the main stream media on the issue of Ponzi. Beyond any doubt BAI had urgent issues to address but absolutely nothing which warranted such gruesome crime. One of the arguments laid forth back then was the value of the investments and relevance of shares held in Britam Kenya. Hopefully someday, the minister of finance, Pravind Jugnauth would care to explain why, the IFC (financial arm of the World Bank), AfricInvest and Swiss Re would bother to invest in Britam Kenya had it been a Ponzi or an impotent structure. Why would the prestigious MMI, following due diligence, showed interest to acquire a controlling majority shares in BAI back in 2014, had the investments been dubious? Three years down the line, now that the thick smog , obstructing vision and impairing brain cells fading out, people are realizing the charges pressed against BAI constituted a false flag with specific purpose to loot, plunder and expropriate.
Such crimes always draw bloodhounds which tear at each other ruthlessly. May be, from the height of his wisdom, retired judge Domah would conclude by recognising the crime committed on BAI and define plundering of the Britam Kenya shares as being a case of “Canis Canem Edit” meaning “Dog Eats Dog”.
