Email--->>>>The Anglo-Leasing saga has become part of Deji Rahmans circus of the absurd and it continues to provide more material for that collection. The conduct of the Jubilee coalition, CORD, the AG, the President, the LSK and Ababu Namwamba s PAC have one common denominator: To stupefy the nation. I will therefore attempt to put certain facts in the public domain. Maybe then, Kenyans may understand what this circus is all about. 1. The President, the AG and some Jubilee political choir members and obviously semi-illiterate lawyers are claiming there are some two international court judgement from Switzerland and the UK that must be honored by paying the Anglo-Leasing invoices - evidently and well known scams by elements of the previous and current political dealers. This is totally untrue. I will explain: Requested by KACA, the Swiss opened investigations on Anglo-Leasing and found a clear case of Money laundering which is a violation of Swiss laws. Subsequently, Anglo-Leasing accounts were frozen. The bank accounts had a total of Swiss Francs 160 million (ca 16 billion Kenya shillings). Anglo-Leasing then accused the Kenya Government before the cantonal court of Geneva of non-payment of fees for services previously rendered or violation of contract. Through neglect and possibly by intent, the Kenya Government lost the case. This is the judgement Uhuru Kenyatta, the AG and the political class are talking about. But it is not the only payment they intend to make. 2. First, the judgement by the cantonal court of Geneva is not an international court judgement as Kenyans are being told. It is not even a national court judgement in Switzerland. A judgement by the cantonal court DOES not automatically trigger enforcement of debt collection in Switzerland. After the judgement, the insolvency law of Switzerland of 11 April 1889 (yes, Eighteen Eighty Nine), codified in the Federal Statute on Debt Enforcement and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs / Loi fédérale sur la poursuite pour dettes et la faillite) comes into force. What this means is that Anglo-Leasing can thereafter initiate debt enforcement proceedings (Betreibungsverfahren / procédure de poursuite) by filing a debt collection request (Betreibungsbegehren / réquisition de poursuite) against the Kenya Government.This must be done at the competent cantonal debt collection office (Betreibungsamt / office des poursuites) at the domicile of the Kenya Government in Switzerland. The debt collection office then serves a summons for payment (Zahlungsbefehl / commandement de payer) on the Kenya Government. But since the Kenya Government does not live in Switzerland the debt becomes invalid and unpayable. The permanent mission to the UN is protected under Swiss Law and enjoys immunity status. Dead end! 3. Secondly, enforcement of a decision against assets of a State or its instrumentalities, including the execution of awards rendered on the basis of the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States (which does not apply in the case of Anglo Leasing) can only be done through the Swiss Federal Supreme Court. This is not the case for Anglo Leasing. 4. Even if the Washington convention were to be applied (Uhuru and Muigai insinuated) the Swiss Federal Supreme Court applies the concept of State immunity restrictively. It distinguishes between matters involving foreign States acting in their sovereign capacity, i.e. de iure imperii, and those involving foreign States acting in a private capacity, i.e. de iure gestionis. Where the State acted de iure imperii, sovereign immunity applies and the State cannot be a party to proceedings before Swiss courts. Anglo Leasing becomes a dead end here again. 4. Fourth, where the State acted de iure gestionis, sovereign immunity from jurisdiction may only be lifted, provided the matter has an ‘appropriate’ connection with Switzerland (“Binnenbeziehung”/“rattachement suffisant”). Such connections are deemed to exist where the claim originated or had to be performed in Switzerland. The mere fact that Anglo-Leasing has some letter-box address in Switzerland is not sufficient to create such a connection. Again here, the claims are dead on arrival unless Anglo-Leasing did some work for Kenya in Switzerland. In conclusion, that the claims, purportedly enforced by a Swiss court, have been paid through a law firm and bank account in England should be an indication to Kenyans that we are facing day light robbery. Thing is, if it was paid through Switzerland, it would be frozen. So they paid for it through England. Truth is that some people in the government want Anglo-Leasing Swiss frozen 16 billion to be released. To achieve this, they must prove that the so-called corruption that made the Swiss freeze the money does not exist. This can only be validated by the payment of the 1.4 billion shillings. They want 17 billion shillings. Dont focus on 1.4 billion shillings only.
Posted on: Wed, 28 May 2014 12:15:59 +0000
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