Prosecute Merali for abetting corruption

By Blamuel Njururi, Kenya Confidential Editor-in-Chief, Nairobi – February 28, 2019

Merali did not only aid and abet in the commission of a crime but conspired with his finance head to aid the crime – both knew they were partaking in corrupt deal to get land from Uhuru – who is fighting corruption and not in the business of land selling

Kenya’s legal minds are urging the prosecution of Sameer Africa chairman billionaire Naushad Merali for his role in Ksh 10 million he authorised to be paid to a gang of conmen mimicking the voice of the President Uhuru Kenyatta.

Two former chairmen of Law Society of Kenya both of who are Senior Counsels have expressed the view that Merali should be prosecuted. Senior counsels Paul Muite and Ahmednasi Abdulallahi hold the view that Merali aided and abated corruption. Some Kenyans read colour bar on selective prosecution.

Arguments for Merali prosecution include the presumption that by the time he ordered the Ksh 10 million to be paid, he believed and was convinced in his mind that President Kenyatta was soliciting a bribe to give him some piece if land at Kilimani area. That is the same President screaming from the roof tops that corruption must end in Kenya. To Merali all that is a smoke screen by which the president is hoodwinking Kenyans and the world that he is fighting corruption.

The decision and action by the industrialist betrays his way of doing business in Kenya, on the African continent and globally. The same man was some years back denied the American tyre company Firestone franchise in what the Americans viewed as unethical business practices. He has also been the subject of insider trading investigation.

Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets in the commission of a crime. In many jurisdictions, aiding and abetting is the same as an “accessory” to the crime. The legal term aiding and abetting refers to a person’s action to help, support, or approve of someone else’s illegal act.

Aiding and abetting is a crime in itself, held against those who would somehow assist a criminal – short of physically contributing to the illegal act. In many jurisdictions, aiding and abetting is the same as an “accessory” to the crime.

To explore this concept, consider the following aiding and abetting definition.

Elements of Aiding and Abetting

To convict someone of aiding and abetting a crime in United States for example, the prosecutor must prove certain elements. In a federal case, those elements include:

  • The accused specifically intended to aid in the commission of the crime, for the purpose of making the endeavor successful;
  • The accused took positive action to aid, or participated in some element of, the commission of the crime, though the level of participation may be relatively small;
  • Someone other than the accused actually committed the underlying crime.

To gain a conviction in United States, a jury must be convinced that the elements of aiding and abetting are present, beyond a reasonable doubt. In truth, once the prosecution establishes that the defendant knew about the crime, or the unlawful purpose of some element, it has made sufficient connection for the jury to convict.

Differences Between Aiding and Abetting, and Accessory

Both aiding and abetting, and acting as an accessory to a crime, are illegal acts. Specific laws regarding these actions vary by jurisdiction, and the definitions overlap in some ways, leading to their interchangeable use. There are differences between aiding and abetting, and accessory, however.

  • Aiding – the giving of assistance or support to someone else in their commission of a crime.
  • Abetting – the encouragement, or motivating someone to commit a crime. This may include rabble-rousing, goading, and instigating someone, or a crowd, to commit an illegal act.
  • Accessory – a person who actually assists in the commission of a crime committed primarily by someone else. In most jurisdictions, the law distinguishes between an accessory after the fact, and an accessory before the fact, lending additional prosecutorial power.

Common Traits Between Aiding and Abetting, and Accessory

Anyone charged with providing assistance to another person (called a “principal”) in their commission of an illegal act is considered to be an “accomplice.” Whichever wording is specified by the laws of the jurisdiction in which the crime is committed, the act of helping someone commit a crime, inducing someone to commit a crime, or helping someone cover-up the fact that he committed a crime, is also a criminal act. To be convicted of this type of crime, however, the prosecution must prove that the accomplice knew that a crime was being, or had been, committed by the principal. In Merali’s  case, he knew the men accused of coning him were soliciting the money to facilitate corrupting the president.

Legal minds hold the view that Merali did what he has always done in cutting deals and in the process painted President Kenyatta as corrupt and incapable of fighting corruption

What is Conspiracy

The primary difference between aiding and abetting (or being an accessory to a crime) and a conspiracy is whether or not the crime was actually committed. While the former are charges imposed after the crime has been committed – naming a third party who helped in some way to facilitate or cover up the crime – someone can be charged with conspiracy, even if the crime never happened. That is yet another contribution Merali was involved.

This is not to say that anyone who daydreams up a crime can be charged with conspiracy. If, however, two or more people collaborate on how to commit a specific crime, coming up with plans to carry it out, they have conspired to commit that crime. Should something happen to prevent them from engaging that plan, they still have committed the crime of conspiracy. Merali did not in any known way try to stop the accused persons.

For example:

Karim, an executive assistant at a finance firm, knows that his boss keeps certain passwords and login information in a notebook in his desk drawer. He befriends Serena, who he knows has no problem doing things that are morally questionable. Eventually, he mentions to her the lax security on those passwords, which would enable someone familiar with the company’s computer system to access the bank accounts of its wealthy clients.

Soon after, the pair begin engaging in more than idle speculation – actually making plans to obtain the passwords and login information, to steal clients’ money, and to cover their tracks. Karim has no intention of doing the “dirty work,” and so the plan involves Serena as the one to sneak in and take the information.

Another employee overhears Karim and Serena talking over lunch on the patio, and mentions it to management, who calls the police. A quiet investigation ensued, with police interviewing witnesses, and viewing surveillance video of the pair talking frequently. Both Karim and Serena are then taken into custody, and charged with conspiracy to commit the crime – even though the actual crime was never completed.

Merali did not only aid and abet in the commission of a crime but conspired with his finance head to aid the crime – both knew they were partaking in corrupt deal to get land from Uhuru – who is fighting corruption and not in the business of land selling.

In the Kenyan situation Merali involved the police when he realised he had been conned by a notorious gang terrorizing billionaire businessmen. Seven men who allegedly conned the Sameer Africa boss out of Sh10 million by pretending to be President Kenyatta were later arrested. The seven were Joseph Waswa, Duncan Muchai, Isaac Wajekeche, William Simiyu, David Luganya, Gilbert Kirunja and Anthony Wafula. They pretended the call was from State House in Nairobi.