The Star (Nairobi)

Kenya: Biwott Defends Record On Molasses, Ouko Death

The former Kerio South MP has been accused in the press of corruption and murder. Now Nicholas Biwott's lawyer rubbishes claims that he ran down the Kisumu molasses plant and killed foreign minister Robert Ouko

Propaganda means using information selectively to sway opinion. Used negatively, it takes the form of lying by omission. The article in The Weekend Star, written by Sarah Elderkin, entitled 'Kisumu Molasses Factory: How Did the Odingas Get It?' (Siasa, August 18/19) did just that.

It dwelt on exploited, false and long-ago-discredited allegations of corruption and disputes surrounding the attempted revitalisation of the Kisumu Molasses plant in the later 1980s that were put forward as possible motives for the shocking murder of Kenya's late Foreign minister Dr Robert Ouko in 1990.

The article was fashioned to substantiate support for the takeover of the Kisumu Molasses plant by Kenya's Prime Minister Raila Odinga in the late 1990s. After reading the article, one is left wondering why Elderkin relates the murder and the plant's takeover. Perhaps that is beside the point.

On the other hand what cannot be left alone, in the interest of posterity, are the articles' inaccurate and unacceptably misleading statements that touch on the late Ouko and the investigations that ensued after his death.

Marianne Briner-Mattern's name witheld. Why?

For example, Elderkin deliberately refrained from identifying the principal source of the information that she relied on in her article, one Marianne Brinner Marten and chose instead to refer to Marianne Brinner only as "her" or as 'the head of BAK'. 'Marianne Brinner is in fact the star witness that Superintendent Troon, who was brought in from Scotland Yard's organised crime unit to investigate Dr Robert Ouko's murder, relied on.

Briner-Mattern, Airaghi and the 'Bak' group "honest" and "reputable"?

In the course of his investigation Troon was put on notice by Kenya's then Industry minister Dalmas Otieno and senior civil servants that Airaghi and Marianne were of "doubtful integrity" but he preferred the evidence of the two individuals over theirs. Troon explained when he appeared before the Ouko Judicial Commission of Inquiry held in 1991 that he relied on his personal judgment and that in his opinion Airaghi and Marianne were "honest and truthful" and their company 'BAK' was "reputable".

Bak registered day ouko killed

Had Troon chosen to review American, Italian and Swiss official documentation and had he actually investigated Airaghi and Marianne objectively and impartially he would have discovered that their company BAK Group Marianne Briner + Partner' company was registered on February 13, 1990, the day that Robert Ouko was murdered .

Extensive documented evidence drawn from company registers in Switzerland and Spain, incorporation documents, Dun and Bradstreet reports and other material, also establish that BAK was not a bona fide company and no BAK entity ever traded. He would also have discovered that a judgment delivered by a civil and criminal court in Milan in March 1987 convicted and sentenced Domenico Airaghi to imprisonment in March 1987 on extortion charges and for acts of dishonesty and attempted corruption.

Airaghi appealed against his conviction but the original verdict was upheld on April 4, 1991. He was found by the court to have presented forged documents to the Milan court in an attempt to establish his defence and was described by the judge as having displayed "the attributes of an International Fortune Hunter" Airgahi's principle witness at his trial was one 'Marianne Briner', who "lived with Airaghi" and of whom the judge noted her "unreliability" as a witness.

Marianne Briner who described herself in Airaghi's court case as a "secretary" of an "International Escort" and "employment agency", gave evidence in that case. The Milan court found her evidence in support of Airaghi to be false. The judge said of Marianne Briner," that it would be better to draw a "compassionate veil" over her testimony and commented on her "unreliability" as a witness.

After Dr Ouko's death Airaghi and Marianne tried to extort $5,975,000 from the Kenya government. It is a fact therefore, that for the entire time that Domenico Airgahi and Marianne Brinener were dealing with Dr Ouko, the Kenya government and subsequently with Troon, Airaghi was on bail as a convicted criminal and Marianne, who was implicated in his crime, a proven liar. In Kenya they behaved no differently from the way they had in Italy, they were dishonest and extortionist 'fortune hunters' who gave false evidence Let me explain.

Who threatened Dr Ouko?

In the article, Elderkin says that BAK indicated that, in the days immediately before he died, Ouko had been preparing a report on the high-level corruption that was hindering the revival of the molasses plant." Elderkin then says that "The writer of the memorandum [aka Marianne Brinner] said, "I spoke with him [Ouko} last on Saturday, February 10, when ... he [Ouko] told me [Marianne Brinener] he was staying in Kisumu to finish his report for HE [President Moi]...." Three days after this conversation about the report Ouko was preparing on the molasses plant, Ouko was dead. Marianne Briner-Mattern was the only source of this allegation and no such report was ever found.

Marianne Briner-Mattern handed over to Troon a letter that she said she had sent to Dr Ouko on January 29, 1990 - two weeks before he died. Troon read out and produced this letter as evidence at the 1991 Judicial Inquiry. The letter did in fact allege corruption but the allegation is of election fraud and accuses Ouko over the 'illegal' employment of workers at the Kisumu Molasses plant and their misuse as campaigners for Dr Ouko during the 1988 election.

In the letter Marianne Briner-Mattern says she has appointed a Nairobi law firm (Kaplan & Stratton) to represent her; that she plans to meet with President Moi; that Moi will ask Ouko for an explanation; that Ouko should 'admit a mistake'; and that she [Marianne] was 'enabling you [Ouko] to prepare your [Ouko's] defence'. This letter has nothing to do with claims against Biwott in relation to kickbacks, rival companies, high-level corruption as Elderkin would have you believe.

Troon accepted at paragraphs 167, 168 and 170 of his "Final Report' on the death of Hon Dr Ouko that there was no 'independent evidence' to substantiate or corroborate Marianne Briner-Mattern's claims that she had spoken to Dr Ouko, sent him letters shortly before he was murdered, or if she had, that they had been received.

At paragraph 172 of his 'Final Report' Troon wrote, 'I can only rely on what she [Briner-Mattern] says concerning the letters'. Again he accepted her testimony "at face value". Under cross-examination on November 18, 1991 by Bernard Chunga, lead counsel of the Judicial Inquriy, Troon also accepted that the allegations of corruption about the Molasses Plant "boil down to BAK directors" who were his "principal witnesses" and that without these two witnesses there was no case against Nicholas Biwott.

On February 22, 2005, 15 years after Troon's investigation, Marianne Briner-Mattern changed her story. Whilst giving testimony to the Parliamentary committee hearings in London in February 2005, Marianne claimed that she "knew more", alleging that another reason for Ouko's murder, which she had feared for her life revealing before, was that Ouko knew too much about President Moi's private life and the provision of 'Ugandan girls' for his pleasure, supplied by Nicholas Biwott and how these girls were being sterilised to stop pregnancies to save Moi the embarrassment.

This is information Ouko was going to reveal. On November 23, 2004, giving testimony to the Gor Sunghu chaired Parliamentary Select Committee investigating the death of Ouko, Marianne said that "any papers" she "held regarding Kenya had disappeared", mysteriously stolen whilst she was in Tanzania and that the people who stole them, "went out to sea" in a "speed boat". Again Marianne Briner-Mattern was unable to produce any evidence in support of her allegations. The Select Committee denied Biwott's lawyer the right to cross-examine Marianne.

Revival of Kisumu molasses plant: who was responsible?

Sarah Elderkin's disingenuous historical account of the Molasses Plant and claim that in the 1980s the revival of the Kisumu Molasses plant "eventually fell" under Nicholas Biwott's auspices as Minister of Energy need to be corrected. Biwott did not become Minister of Energy until September 1983 and had nothing to do with its abandonment in 1982 and it being put into receivership in 1983.

Thereafter in 1986 President Moi announced that the Kisumu 'Molasses Project' was going to be revived and Ouko, in whose constituency the plant was situated, would be placed in charge of its revival, and in 1987 Ouko was appointed Minister of Industry. The Ministry of Industry from then onwards took the lead role in managing the plant's revival.

Biwott's Ministry of Energy was never in charge of the project. On July 29 1987 Ouko met Airaghi, supposedly a director of the 'BAK Group'. Elderkin refers to this group as that 'Italian group" that was 'favoured by Ouko regarding the revival of the molasses plant', although she does not mention Airaghi by name.

At that meeting Airaghi asked for authorisation to search for funding for the Molasses Project, find a reputable international contractor to undertake its completion and obtain a grant from the Italian government to fund a feasibility study into the Molasses Plant's viability and status and what needed to be done to complete it. Airaghi's business partner in the 'BAK group' was Swiss-Italian, Marianne Briner-Mattern. A week later, on August 6, 1987 Ouko gave Airaghi this authorisation.

On September 23, 1987, an Inter-ministerial meeting chaired by Ouko, that included Nicholas Biwott as Energy Minister and George Saitoti as Finance Minister formalised this arrangement with Airaghi whereby a Letter of Intent was given to BAK stating that "the Italian company has offered to complete the project and has undertaken to mobilise funds for this purpose." Two weeks later on August 19 Ouko wrote to the Attorney General Matthew Guy Muli informing him of this Letter of Intent and stating; 'I have discussed this matter with my colleagues Hon Prof Saitoti and Hon Nicholas Biwott both of whom fully support my action'.

On November 3, 1987, BAK was officially contracted to carry out a feasibility study for the rehabilitation of the Molasses Plant on agreed terms that they seek the finances for this themselves.

Dalmas Otieno takes over

Following the general election of March 1988, Robert Ouko became the Minister of Foreign Affairs and Dalmas Otieno was appointed Minister of Industry and thus took over responsibility for the Kisumu Molasses plant's rehabilitation. "Dr Ouko was interested in it [the Kisumu Molasses project]", Otieno told Troon in his witness statement of May 21, 1990, "but the management of it was maintained at the Ministry of Industry from the time he left office", adding that, "Airaghi was passed over to me with the project".

The problem with BAK arose when by September 1988, the BAK Group had failed to undertake the feasibility study of the Molasses Project and they had also failed to arrange funding for the project's completion, this was contrary to their contract. On September 27, 1988 Dalmas Otieno selected a new company, this time an American company called F C Schaffer & Associates, to do the feasibility study for the Molasses Plant.

FC Schaffer & Associates was introduced to him by the US Embassy and their work was paid for by a 'Grant of the United States Trade and Development Program'. FC Schaffer produced a report on 17 October 1989 in which they did not find the project viable. Hon Dalmas Otieno subsequently informed F.C. Shaffer on 4 February, 1991, that the Kenyan Government had decided on that basis not to proceed with the Kisumu Molasses Project.

Ultimately, Airaghi and Marianne and the companies they introduced (which had been Techint, Asea Brown Boveri and ....) were excluded from the Kisumu Molasses Project by Otieno as Minister for Industry because they did not raise the pre-requisite funding for the project and Airaghi, according to Otieno's assessment in his witness statement to Scotland Yard dated May 21, 1990, was not considered, "competent to handle the project and knew nothing about molasses".

"I told him [Airaghi] my views", Otieno said in his witness statement, "and he never came back". All decisions relating to the Kisumu Molasses Project were therefore taken through the Ministry of Industry, first under Dr Robert Ouko and after March 1988 under Dalmas Otieno. All were recorded, together with the developments at each stage, in cabinet minutes and the government's 'Molasses File'.

Troon, however, admitted on November 21,1991, at the Judicial Inquiry into Dr Ouko's murder, that he did not read, or even ask to see the 'Molasses file', because he saw no need for it, as he accepted the evidence of Marianne Brinner and Airaghi at "face value".

Rival bids and "kickbacks"?

The article referred to an alternative bid for the Kisumu Molasses project, the attempt to gain "kickbacks" and Ouko's supposed "corruption report" on this. This claim is again incorrect because there were no rival bids. The three Italian firms introduced to the Kisumu Molasses Project prior to it being cancelled by the Minister for Industry, Dalmas Otieno, were Technit, Asea Brown Boveri and Tecnomasio.

All three were introduced as already mentioned as nominated companies by Airgahi- not by Nicholas Biwott, or anyone else associated with him. Domenico Airaghi's own documentation, for example his letter to Dalmas Otieno of June 24, 1988, and his witness statement to Scotland Yard of May 9, 1990, proves beyond doubt that he introduced the Italian companies, not Nicholas Biwott.

Similarly, the US Company FC Schaffer & Associates that ended up doing the feasibility study for the Molasses Plant was brought in by Dalmas Otieno and introduced through the US Embassy in Nairobi, not Nicholas Biwott.

Airaghi and Briner-Mattern: the source of the allegations

Elderkin wrote that Dr Ouko 'had told other friends' of 'powerful forces in the cabinet' who were 'opposed to his determination to expose corruption'. However, closer inspection of this testimony reveals that ultimately the source for each of these allegations was either Domenico Airaghi or Marianne-Briner-Mattern. Scotland Yard's Detective Superintendent John Troon's initial investigations into Dr Ouko's murder had focused on multiple witness testimonies alleging long-running and bitter rows in the Ouko family, allegations regarding local political rivalry going back to before the 1988 election, and allegations of corruption in the Kisumu Town Council, as possible motives for his murder.

However, detective Troon's line of inquiry changed dramatically six weeks into his investigation after he interviewed Marianne on March 22, 1990 and switched to the Kisumu Molasses theory, a theory that originated entirely from Marianne Biner-Mattern's testimony. Dr Ouko's wife, Christabel, only mentions allegations related to the Kisumu Molasses project in her fourth statement to Scotland Yard. She said, however, these were "according to Marianne and Domenico", whom she referred to as being "like family".

Likewise Dr Ouko's sister Dorothy Randiak only mentions the allegations in her third statement to Scotland Yard where she referred to meeting "one of the Italian men" and discussing it with Dr Ouko's secretary Esther Ruvaga whose husband, according to Randiak, "had tried to start a business with the Italian gentlemen [Airaghi]".

As for Esther Ruvaga, Briner-Mattern said in her statement to Troon, "I had several conversations with Dr Ouko's secretary, Esther Ruvaga, about the Molasses project...". Ruvaga admitted at the Commission of Inquiry on November 18, 1991, that her knowledge of the Kisumu Molasses project came from "what she was told by Airaghi". Erick Ouko Reru, "Dr Ouko's campaign manager" spoke of the allegations in a statement that was, "Further to my previous statements" when he was "asked by Troon" about "the Kisumu Molasses Projects and my involvement in these matters".

Reru told Troon, "I have spoken with Airaghi many times" and admitted that his knowledge of the allegations came from Airaghi at a discussion they had in the Sunset Hotel, Kisumu. Both Mrs Ouko's fourth statement and Dorothy Randiak's third statement to Scotland Yard were made after Marianne Briner-Mattern made her allegations over the Kisumu Molasses project to Troon on March 22, 1990, as were the statements by Ruvaga and Reru. No statements made to Scotland Yard before Briner-Mattern's on March 22 referred to the allegations that she made over the Kisumu Molasses project.

Eric Onyango

In the article, Elderkin specifically mentions Dr Ouko's friend Eric Onyango in support of allegations of the "kickbacks" and indeed Onyango's name does appear frequently in the testimony about Dr Ouko's murder. According to Troon in paragraph 134 of his 'Final Report' Onyango, who "had known the Minister [Ouko] for some 25 years and was also a very close friend of the family", had confirmed the bad relationship between Dr Ouko and his brother Barrack Mbajah and visited Ouko at his Koru farm on February 10, 1990 (three days before Ouko was murdered) where they had discussed the recent trip to Washington which, Onyango said, Dr Ouko told him had gone well 'with President Moi gaining popularity'.

It was Eric Onyango who according to Dorothy Randiak, was one of the two people who rang Dr Ouko on the night before he was murdered. It was also Eric Onyango who according to Barrack Mbajah called Dr Ouko's mistress, Herine Ogembo, to tell her that the minister was missing. And it was Eric Onyango whom Barrack Mbajah alleged in his affidavit of September 18, 1991, was one of the people who arrived to pick up Dr Ouko on the night he was murdered.

James K'oyoo

The article also referred to allegations made by a James K'Oyoo, a 'campaign advisor' to Dr Ouko and 'a close friend of Eric Onyango's, who told the Commission of Inquiry in 1991 that Ouko had told him of 'threats to his life over the molasses plant'. K'Oyoo had made two statements during Troon's investigation, one on tMarch 16 and one on April 23, 1990. In neither statement did he mention the name of Nicholas Biwott, or any alleged threat to Dr Ouko.

In the first of these statements K'Oyoo instead testified that he had gone to seek Dr Ouko's help in January 1990 because he had been suspended as a personnel clerk with the Kenya Post Office 'for obtaining employment by false pretences', specifically for falsifying his education qualifications (K'Oyoo later admitted to the Commission of Inquiry that he had indeed lied when applying for the post in 1983).

It was not until some 20 months after the murder of Dr Ouko that James K'Oyoo first alleged and not until his crossexamination at the Judicial Inquiry, that Dr Robert Ouko had told him of fears for his safety. More specifically, in relation to the Kisumu Molasses project, K'Oyoo alleged at the Commission of Inquiry that FC Schaffer, the US-based company that did the feasibility study for the Molasses Plant, was "a mere play and in totality it was just Biwott in disguise", that "Nigel Williams [a consultant with FC Schaffer] was a long time friend of Biwott whose main job was a lobbyist".

The truth is that FC Schaffer had been appointed by Dalmas Otieno. But unlike the BAK group, FC Schaffer were a reputable specialist engineering company which since 1968 had been involved with hundreds of project in 45 countries worldwide. In 1999 the then US Secretary of State Madeleine Albright had awarded FC Schaffer with the Department's inaugural award for 'Corporate Excellence'.

K'Oyoo testified to the Commission of Inquiry that he had travelled to Geneva and London in November 1989, "to accord myself an adventure of seeing the outside world" requiring "money which was allocated to me" of "£1,250 which was about Sh40,000". On the trip he said he had gone "shopping at [the] renowned Selfridges Store, Oxford Street" in London. K'Oyoo told the Inquiry that his net salary at the time "was something like Sh2, 900." In short it is highly surprising that Sarah Elderkin has sought to rely on K'Oyoo.

Nicholas Biwott not protected

According to the article detective Troon had 'repeatedly' tried to interview Biwott but 'without success'. The fact is that Troon told the Ouko Judicial Inquiry on November 7, 1991, that, "I only visited his [Biwott's] office once", a meeting Troon said that he [Troon] had arranged earlier that day through Hezekiah Oyugi, then the PS in the Ministry of Internal Security, but that Nicholas Biwott's secretary said that 'he wasn't there, hadn't been there the whole day'.

This was not surprising as Biwott was on an official visit to Tehran at the time. Troon was then asked by lead counsel Bernard Chunga at the Ouko Judicial Inquiry whether he had tried to arrange another meeting with Nicholas Biwott. "No, I did not", replied Troon, "because I was still pursuing other matters and interviewing other ministers and I was also being requested to get my report in". In 1991 Biwott stated that "On returning from an official visit to Iran I was told by my secretary that Troon wanted to see me.

I called Phillip Kilonzo, the Commissioner of Police, who told me that he was sitting next to Troon and would ask him what he wanted. After a few moments Kilonzo came back to the 'phone and told me that Troon did not want to see me. That was the only contact I had with Troon. At that time I had no reason to believe that I was in any way under investigation regarding Dr Ouko's murder."

Elderkin's claim that the "commission of inquiry" was "closed down before any evidence against Biwott could be heard"does not appear to be the case to any honest and objective observer. Before the inquiry was disbanded there had already been a 4 month barrage of accusatory statements made against Nicholas Biwott. and Troon had read his 'Final Report' in full to the Public Inquiry, all 109 pages and 298 paragraphs of it, which was reported almost verbatim in the Kenyan Press.

The moment Biwott's lawyers started cross-examining Troon he asked to be stood down to attend "urgent family business in the UK". He did not return. As a result of Troon's evidence Biwott, George Oraro and others that Troon implicated were arrested. Biwott was subsequently released without charge after the Kenyan police were unable to find any evidence linking him in anyway to Ouko's murder and unable to find any evidence that supported the BAK allegations and Troon's theories.

Detective Troon's failings

At the beginning of Troon's cross- examination at the Judicial Inquiry in 1991 by Biwott's lawyer, Ishan Kapila, that was cut short, Troon was forced to concede that he had not read or asked for the Kenya government's 'Molasses file'; that he had not investigated the backgrounds of either Domenico Airaghi or Marianne Briner-Mattern or their company 'BAK'; that he had not personally interviewed Airaghi or read his diary; that he had not contacted the US, Swiss or Italian authorities in support of his inquiries. Troon has since then eluded proper cross-examination.

Troon off the hook: Biwott and Ouko not British

It is on the basis of Troon's flawed and incompetent investigation and its dire and tragic impact that Biwott lodged an official complaint with the Metropolitan Police, Scotland Yard, and then Prime Minister Tony Blair, requesting a review of Troon's investigation and an apology for it. In October 2004 Scotland Yard declined. Biwott, Dr Ouko and Troon's witnesses were not "UK" citizens.

Facts known for 20 years

These facts can be corroborated. Hon Dalmas Otieno is still a serving cabinet minister. The US State Department, the US Embassy in Nairobi, other relevant government authorities and relevant documents can also confirm the facts, because all of the evidence referred to and more has been in the public domain for many years, most of it for 20 years.

Reporting the truth

The truth as to what really did and did not happen up to and including the murder of Dr Robert Ouko is of critical importance to Kenyans, to the history of our country, for the rule of law and for justice. It should not be subverted to be used for propaganda, or to divert attention from current events.

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