Sunday, 6 February 2011

Confidential Agenda (Week ending 13 February)

SUDAN: Western deal over President Omer el Beshir's genocide charges

A deal that would grant Sudan's president an annually renewable deferral of the genocide and war crimes charges against him was mooted at the African Union summit in Addis Ababa last week, according to African and Western officials (see the lead story in the latest Africa Confidential). The purpose of the deal, these officials say, is to encourage President Omer Hassan Ahmed el Beshir to reach agreement with Southern Sudan after last month's referendum and engage in credible peace talks in Darfur.

One immediate outcome if such a deal goes ahead would be a further deterioration in relations between the International Criminal Court at the Hague and the African Union. Already, AU Chairman Jean Ping has accused ICC prosecutor Luis Moreno Ocampo of double standards and is blocking the establishment of an ICC office in Addis Ababa to liaise with the AU.

Any deal to defer the ICC case Sudan's President Omer would need backing from one of the permanent members of the UN Security Council, probably France, to agree a deferment of the charges brought by the International Criminal Court (ICC). Although Russia and China could be expected to support it, backing from Britain and the United States would be critical. Kenyan officials claim that their request for a deferral of the prosecution of six officials charged with involvement in the violence after the 2007 elections was also discussed at a high-level with Western and African diplomats in Addis Ababa. That is why, they say, the AU summit passed resolutions to request the UN Security Council to defer both the cases of Sudan's president and the six Kenyan officials at the ICC.

It was Sudanese Foreign Minister Ali Ahmed Kurti's visits to Paris and Washington that sparked the latest discussion on how Western policy towards Khartoum might change in the aftermath of a successful referendum on Southern Sudan.

LIBYA: Why US diplomatic cables could threaten Colonel Gadaffi

Like all other North African leaders, save for Mauritania's Mohamed Ould Abdel Aziz, Libya's Colonel Muammar el Gadaffi failed to attend the African Union summit in Addis Ababa on 30-31 January in case some of his many enemies decided to fan the wind of change in the direction of Tripoli.

Pressure could still be mounting on Colonel Gadaffi this week after a tsunami of State Department cables on Libya obtained via Wikileaks is zinging around the internet, having been first published by the Daily Telegraph in London on 2 February. The cables tell tales of the criminality and pettiness of the Gadaffi regime and ridicule its claims of radicalism.

Oppositionists in Tunisia have said that the Wikileaks State Department cables, with their stark depiction of impunity, arrogance, nepotism, conspicuous consumption and rampant corruption by the Ben Ali clan, was one of the factors that helped tip the country towards rebellion.

Hundreds of new cables pick apart in unprecedented detail the nature of Gadaffi's rule, his relations with the United States, Britain, BP, governance of the oil industry and the negotiations over the release of Abdel Baset Ali el Megrahi, the man convicted of bombing PanAm 103 in 1988.

Our Libya correspondent confessed to being overwhelmed by the quantity and quality of the reporting, which he said is adding hugely to the outside world's understanding of the secretive state. Libyans also will be digesting the contents this week and making their dispositions.

What the cables reveal about the inner workings of the Great Socialist Peoples Libyan Arab Jamahirya is unflattering to the Colonel Gadaffi. One cable from the US embassy in January 2009 says that in spite of Gaddafi's cultivation of his image of a “philosopher king” standing “above the fray”, little concerned with the tawdry minutiae of government and business, he is in fact, "...intimately involved in the regime's most sensitive and critical portfolios.”

The cable reveals that Gadaffi uses the General People’s Committee for People’s Inspection and Control – also known as the Raqaba Shabiya (AC Vol 51 No 24) – not, as advertised, as an organ of oversight designed to ensure maximum probity, but “…to politically vet commercial contracts involving Government Of Libya [GOL] funds and ensure that opportunities to extract rents from those contracts are distributed to key regime allies.” It added that a local source told them that Gadaffi "...personally reviewed all contracts involving GOL funds that were worth more than US$ 200 million and exercised a great deal of influence over which foreign companies were awarded contracts." In fact, it added, he frequently involves himself in contracts well below that financial threshold.

Gadaffi not only uses the Raqaba to favour regime cronies, but also to award contracts to countries he wants to thank. A number of Scottish companies have been favoured with many new Libyan contracts in the year since the release of El Megrahi, as reported in the Scottish press, but until now they supposed that no causal link between the release and the contracts could be proved.

The cables make it clear that "rewards" of this nature is standard practice for Libya and that Scotland is being showered with commercial gifts for releasing the convicted bomber. Mostly, the Raqaba has been used to punish countries, like Denmark after the Mohammed cartoons episode, and Switzerland after Gadaffi's son Hannibal was arrested there.

One cable, by the ambassador, Gene Cretz, even says that Raqaba was used by Prime Minister al-Baghdadi al-Mahmoudi, with Gadaffi's consent, to harass the Tripoli branch of Marks & Spencer because its owners included Husni Bey, an old rival. Overall, Cretz remarks, '...Libya is a kleptocracy in which the regime - either the al-Qadhafi family itself or its close political allies - has a direct stake in anything worth buying, selling or owning.'

HEALTH: The Global Fund detects global fraud

More revelations and more outrage are on the agenda in the coming weeks as the scale of the misappropriation of monies granted by the Global Fund To Fight AIDS, Tuberculosis and Malaria becomes ever clearer. Although embarrassed by revelations of false accounting, diversion of funds, slow disbursement of legitimate grants and many other scams, it was the Fund's own Office of Inspector General (OIG) which uncovered the evidence and reported extensively on it just before Christmas.

There was much breast-beating about whether revealing the scale of the problems might not result in a loss of donor confidence that would lower funding and thus harm those in need. Germany, in fact, has suspended disbursement of its planned 2011 grant of €200 mn and Sweden followed suit. But generally, the Fund has been lauded for its commitment to transparency.

Nevertheless, the Fund reacted angrily to an Associated Press report based on the OIG report. The Fund said it misrepresented the situation and called on people to recall that only 0.3% of the $13 billion disbursed so far by the Fund, mostly in Africa, has been stolen. Zambia, Mali, Mauritania and Djibouti had corrupt programmes and measures had been taken to try and recover a missing $34 mn. It is clearly embarrassing the Fund that such practices should be discovered when its entire raison d'etre was to cut through ponderous governmental red tape and deliver direct to those in need.

The UN Development Programme is going shortly to have to provide some answers to the Fund about its role as a 'principal recipient', passing on Fund grants to organisations down the delivery chain. The OIG found, in one African contract for which the UNDP had overall responsibility, 77% of the $3.5 mn worth of the programme they had examined had gone astray.

Much of the trouble stems from the involvement of health ministry officials and politicians in Fund programmes which run, as intended, in parallel to less efficient state-run programmes. Fund monies are outside the normal government budget streams and could be more vulnerable. 'Local Fund Agents', often accountancy outfits like PwC and KPMG, are meant to be the eyes and ears of the Fund in the countries they are responsible for and yet few were aware of the frauds that the OIG uncovered.

Although UNDP is not the only problem here we believe a major storm is brewing between the UN agency and the Fund. In addition to the countries already mentioned OIG investigations are ongoing in Kenya, Kyrgyzstan, Malawi, Mali, Nigeria, Madagascar, Sri Lanka, Swaziland and Uzbekistan. The crimes cover the whole gamut of fraud and theft, from false invoicing to organised theft of drugs shipments. The Fund appears to be tackling the corruption with some determination, despite the risks to overall funding, and has found the money for seven new staff positions in the OIG, which is carrying out 15 audits this year, and has appointed a panel of experts to help and announced 'zero tolerance' of fraud.

GABON: Ali Ben Bongo's election win challenged, 18 months later

Andre Mba Obame, a former minister in Omar Bongo Ondimba's government and a presidential candidate in the August 2009 election, suddenly announced on 25 January that it was he who had won that election, and not Ali Ben Bongo Ondimba. He then turned up at the UN Development Programme’s Libreville compound with 20 supporters in tow. He proclaimed himself President and announced a parallel cabinet.

Obame’s inspiration has three sources: the French TV documentary that recently declared his vote had simply been switched with that of Ali Ben Bongo, the internet-linked ouster of President Ben Ali in Tunisia (Obame has a Facebook page), and the presidential stand-off in Cote d’Ivoire. Perhaps Obame sees a magical connection between the similarities of the names ‘Ben Ali’ and ‘Ali Ben Bongo’.

Obame has taken to styling himself ‘AMO’, in the manner of Ivorian president-elect Alassane Ouattara’s ‘ADO’. AMO is further attempting to emulate ADO by putting himself under UN protection, refusing to leave the UN compound, and saying his life would be in danger if he did. He may not be far off the mark. The government dissolved his Union Nationale party, accused him of high treason and closed down his TV station. There was rioting by AMO supporters outside the UN compound and police fired tear gas.

The African Union is not impressed. It condemned Obame’s dramatic move, which must have been timed to coincide with the AU summit in Addis Ababa. It is the UN, though, which will be suffering headaches this week. If they expel him from the compound they might be accused of complicity in whatever the government then does to him, and if they don’t, they risk ‘copycat’ actions in the many UN offices around the world. It promises to be an interesting week in Libreville.

When Africa Confidential asked President Ali Ben Bongo at the AU summit in Addis Ababa for his views about his challenger and where the wind of democracy in North Africa was heading, the President said he didn't want to get into that game and in any case he wasn't good at making predictions.

KENYA: Constitutional liberties

The week is going to see some heated arguments in parliament and court about what belongs to parliament and what belongs to the constitution. At stake are nominations for some of the government's most important offices. President Mwai Kibaki nominated Justice Alnashir Visram as the Chief Justice, Professor Githu Muigai as Attorney-General, Kioko Kilukumi as Director of Public Prosecutions and William Kirwa as Budget Controller (see page 3, current issue).

However, Prime Minister Raila Odinga and his party are opposed to the nominations and said that there were no proper consultations over them, just the latest in a series of intra-coalition confrontations. Then, the Speaker of the National Assembly, Kenneth Marende, declared that it was unconstitutional for the government to make the nominations because the provisions for consultation and fairness had not been followed.

Marende was in an awkward position; approve the nominations and he risked the ire of the courts and Odinga; disapprove, and he risked being impeached, as one threatening letter warned. He duly declined to make a ruling but the pressure was already off, because, only hours before he stood up in the National Assembly on 3 February to announce his decision, the High Court had ridden to his rescue by striking out the nominations.

Justice Daniel Musinga said, "I am satisfied that the nominations were in breach of Article 27(3) of the Constitution that guarantees fundamental rights and freedom of women and men to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres." A group of civil society organisations, most of them bodies representing women's rights, brought the case. Kibaki's side insists that the nominations were legitimate and were properly consulted on. He has released details of horse-trading between the coalition partners over the nominations but Odinga insists the nominations are 'null and void'.

The court has said that the petition to the court by the civil society organisations must be heard. Depending on how long it takes that could cause big problems for the AU-backed move to have the ICC suspects' cases heard in Kenya. And it hardly inspires confidence that the man who formally put the presidential nominees to parliament was Francis Muthauru, who is on the list of the six ICC suspects.

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