Monday News Muse 12 April 2016


The Catholic Church in Kenya speaks out on corruption. It’s a growing chorus- but the tone from the top (State House) is woefully lacking.

Criminal Law

Another blogger arrested: this time for an amorphous collection of complaints related to the receivership of Chase Bank. Some reports, quoting the case detectives, suggest it was for spreading panic and tainting the image of the CBK’s banking supervision unit. Neither of these is a crime in itself. So one must look elsewhere for a justification for the arrest- according to the Inspector General the blogger was driven by malicious considerations to peddle falsehoods. Still no specific charge in that accusation. If I wanted to be charitable to police, I could presume that they are referring to s.66 of the Penal Code (banning alarming, false publications). If so, the blogger in question has a defence if he can point to steps he took to verify the information before publishing it which led him to believe that the information was true.

So given the amorphous nature of the police complaints, it’s likely that the charges will be equally amorphous- possibly brought under the much-abused ‘improper use of a licensed telecommunications system’ provision of the Information and Communications Act. An observer has noted that 7 bloggers were arrested for this and similar offences in 2015 but the number has ballooned to 16 in the first quarter of 2016 alone! The Kenya Police need an award for ‘#1 in Bloggers Arrested’ to go along with the ‘#1 Most Corrupt State Organ’ ranking they consistently get in corruption surveys.

image courtesy of ncr-iran.org

I’m currently writing a paper on why this provision of Kenyan law is so prone to police and prosecutorial abuse; an obvious part of the problem is the loose drafting that allows creative interpretation by ambitious prosecutors trying to keep up with traffic on ever-shifting trends, apps and websites- not to mention the feverish energy of social media commentary. These make life difficult for those determined to police free speech. So a broadly drafted criminal offense focusing on the gadget used rather than the software application or method of speaking comes in handy.

While on the subject of attacks on those who report the news, the Somali Government has executed a former journalist responsible for assisting Al Shabaab in the killing of 6 fellow journalists. He confessed to personally killing one journalist and but was convicted of 5 other killings as well. He was extradited from Kenya last year, so that was a fairly quick trial, though his confession may have helped.

But transferring people from one country to another can turn troublesome in a heartbeat as Kenya is discovering once again. The Kenyan government recently put a number of Chinese nationals acquitted by a Kenyan court on a jet bound for the People’s Republic of China. So far so good, but one problem: 8 of those on that flight were allegedly citizens of the Republic of China (commonly known as Taiwan). Now Taiwan is demanding its citizens back- accusing the PRC (and Kenya as an accessory) of kidnapping its citizens. The allegation against Kenya is that it bowed pressure from the PRC (one of its main creditors) and quickly hustled the 8 onto the jet before Taiwanese diplomats could arrive.

Annoying Taiwan- which is scarcely internationally recognised as a state- may not be a big geopolitical headache for Kenya. But it illustrates how China is flexing its muscle to get its hands on Chinese people who previously thought they were safe either in Hong Kong (like the Hong Kong booksellers who disappeared and turned up on the Mainland, in police custody and making patently forced confessions) or these Taiwanese individuals who thought their Taiwanese passports would keep China at bay.

This could be just a heavy-handed way of making it clear that the ‘one China’ policy has teeth and can bite whether you’re Mainland Chinese or a citizen of one of the ‘reluctant’ children like Hong Kong or Taiwan. But it’s a serious worry for the 8 individuals involved because China’s criminal justice boasts an above-99% conviction rate, something that almost any prosecutor, defence counsel or criminal court judge outside China will tell you is laughably high. So if you get abducted to the PRC to face trial, expect to go to prison.  We don’t know if the 8 will face trial in China but if so, then the Kenya government may just face responsibility under human rights law for sending someone to a country where they are likely to face a violation of their rights (i.e. a railroaded trial on Mainland China)

The tragedy is that in their haste to please their PRC creditors, we don’t know if Kenyan officials neglected to request a reciprocal return of Kenyans arrested and held for crimes in the PRC.

Money Laundering

Chase Bank recently went into receivership. According to the CBK Governor, bloggers and not his fellow bankers are most responsible for that sad sequence of events. Nonetheless, the owners of the bank appears, on objective facts, have the most to answer for. One interesting point is that the ownership is in offshore shell companies of the sort made infamous in the Panama Papers as money laundering and tax evasion tools (But as Donald Trump might put it: some of them, I assume, are good shell companies).

Courtesy pressherald.com

At least three jurisdictions- Mauritius, Cyprus and the Isle of Man- host these opaque Chase Bank ownership vehicles.


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