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Expert Evidence in World Duty Free at ICSID

(This article first appeared in the inaugural issue of The Wakili, the Law Society of Kenya Nairobi Branch magazine January-March 2020 Vol. 002.)

Occasionally, we stumble upon something to kujivunia kuwa Wakenya or be proudly Kenyan. Like the liberty which allows a Kenyan damu to give evidence against Kenya in a foreign court or tribunal. Then fly back home without any drama at JKIA – no court orders, no riot police, no advocates – and he continues teaching in a public university.

One Nasir Ibrahim Ali, a foreigner, told the International Centre for Settlement of Investment Disputes (ICSID) arbitral tribunal that he had, on behalf of his company World Duty Free, in 1989 privately given President Moi Ksh. 200 million to procure a concession for exclusively operating all the shopping space in Kenya’s then two international airports. He conceded, on cross-examination, that his generous personal donation “appeared to him” to be a bribe.

I have written, elsewhere, a manual on how to bribe a President for the benefit of those who are still operating at the level of bribing court clerks for files to appear, disappear, re-appear and to be called out first. All from Ali’s evidence.

EXPERT EVIDENCE

Dr. Pius Mutie, a Kenyan anthropologist, gave expert evidence to support Ali’s compensation claim against Kenya. And thanks for asking: anthropology is the scientific study of human behaviour, especially culture. His signed Curriculum Vitae dated 13th January 2013 says he was the best student in the B.A. Social Work Class of ’90 at The University, where he also earned his MA. Then he capped it all with a PhD from the University of Bielefeld in Germany, where he also learnt the lingo.

His professors, on examining their workmanship, could not help proclaiming, “sehr gut!” – very good. A very prolific researcher, he presented two papers on anthropology in an international conference in Sweden in 2012. One of his specialisms is contemporary African philanthropy. He was Lead Consultant in a 2-year study on the State and Nature of Philanthropy in East Africa. He was, easily, the best person to explain to the ICSID tribunal the difference between a bribe and a harambee donation.

Dr. Mutie’s Modern African Anthropology Class of ’06 at ICSID was made up of H.E. Judge Gillaume, Hon. Andrew Rogers QC and V.V. Veeder QC. It learnt that such gifts are given as a way of saying “hello” in many African communities and that when one visits a friend he does not come or leave empty-handed. Only that the subject matter was not the loose change or lonely note which you parted with grudgingly the last time your auntie or village elder cornered you in their respective jurisdictions.

The Professor of African Anthropology, emboldened by silence in court and the furious manner in which the students were writing his every word cleared his throat authoritatively and raised his voice several decibels to emphasise that not giving such gifts was “customarily sanctioned” and would be a sign of “extreme poverty, meanness or rebellion against cultural norms”. You heard right: Not giving or not receiving the gift would have repugnant to African justice and morality. Of course, African leaders have a history of being showered with beads, tobacco and rum from aliens, who do not leave empty-handed but heavy laden with the finest ivory and gold. And slaves.

I should have met Dr Mutie earlier. He would have disabused me in good time my mother’s teaching that I should not accept gifts, especially sweets, from strangers. Can you imagine how many sweets I have missed in my life?

COMMUNITY PROJECTS

He then ventured further into the harambee, explaining that it was how Kenyans raised money for community projects. Apparently, this is a uniquely Kenyan tradition and about the only thing our dear Southerly brothers and sisters admire in us. Now, I know of soloists and of 1-man guitars but have not previously heard of a harambee where the needy community project was one man’s stomach.

His view was that the gift was not only completely acceptable, innocent and honourable but also mandatory under African customs, religions and philosophy. He saw no strings attached. That was the truth, the whole truth and nothing but the truth from Mutie the Pius.

The tribunal found that the money was a bribe in contravention of Kenya’s own laws and international public policy. In other words, Dr Mutie’s evidence fell under its own weight like an elephant sick with permanent head damage (PhD). Methinks that a random mama mboga from Marigiti or a sober matatu tout on the Kangemi route would, purely from their periodic interactions with kanjo askaris and traffic cops, have given a more credible expert opinion on the subject matter than that professor of anthropology.

The uncanny expert witness is not new or particularly African custom. To paraphrase Sir Thomas More in Robert Bolt’s 1960 play set in 16th century England, A Man for All Seasons, one could ask that professor, “For Ali? Why Dr. Mutie, it profits a man nothing to give his soul for the whole world…but for Ali!”

-The author, a Chartered Arbitrator, was recently awarded the Head of State Commendation.

One Comment Hide Comments

Mr. Ngotho,
You write so well! I enjoy reading your pieces. I particularly admire how you always find a way of bringing humour.

In Kenya, it is startling how we take things lightly; a Kenyan giving evidence against his country in an international arbitral tribunal?
What’s worse is that the tribunal finds against his testimony based on Kenyan law. How embarrassing!

Lastly, I enjoyed the conclusion. A Man for All Seasons is one of my all-time favourite works of literature.

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