By Ben Agina

Kenyans can forget about Mr Bradley Birkenfeld testifying about Anglo-Leasing-type deals.

This includes crimes he and others committed in a phoney Sh5 billion project for the Kenya Police.

The American whistle-blower will soon be sitting in a US federal prison wishing he had kept his mouth shut.

Despite helping the US Department of Justice unravel a multibillion-dollar tax fraud conspiracy, he was recently sentenced to 40 months in jail for conspiring to defraud the US.

Mr Bradley Birkenfeld. The Anglo Leasing whistle-blower was recently sentenced to 40 months in jail for conspiring to defraud the US. Photo: Courtesy

This was a much stiffer sentence than expected given that Birkenfeld’s information let the US pierce Swiss bank secrecy laws as never before possible.

Lawyers and whistle-blower advocates say the harsher-than-expected treatment will undermine efforts to expose secretive offshore tax havens. It has also almost certainly ended the former UBS banker’s career as a whistle-blower.

"The message being sent to whistle-blowers is stay home and be quiet," says Ms Jesselyn Radack, a former Justice Department lawyer.

"The only person going to jail in this case is the whistle-blower. If Birkenfeld had stayed in Switzerland and not given the Department of Justice the keys of the kingdom, he would still be a free man."

More than 4,500 tax evaders were netted as a result of Birkenfeld’s information. The real estate billionaire he helped hide $200 million (Sh15 billion) from the Internal Revenue Service has paid a fine and got no jail term. Birkenfeld is a key suspect in at least one Anglo Leasing-type scandal.

He signed a security contract with the Government on behalf of Infotalent Ltd to computerise the police force and install surveillance cameras in Nairobi (Project E-Cops).

Observers believe he offered to spill the beans on this deal in the hope continued co-operation would mean a light sentence.

One of his lawyers contacted Attorney-General Amos Wako to urge him to put in a formal request for mutual legal assistance.

"(Mr David Meier) recently got in touch with me asking that we put in a formal request for assistance so he (Birkenfeld) could talk to us," Wako was quoted saying last month.

The US, however, has not been as enthusiastic to get him to talk to Kenya.

Mr Dean Zerbe, another Birkenfeld lawyer, told Reuters the Justice Department stopped seeking any information from Birkenfeld 17 months ago. This may explain why Wako’s request for mutual legal assistance from the US, made in March this year, has not yielded any fruit.

On Friday, the AG confirmed he had received no response from US Ambassador Michael Ranneberger.

Wako first wrote to Ranneberger on March 28 this year, seeking confirmation of Birkenfeld’s arrest.

The US envoy confirmed the banker had pleaded guilty to one tax fraud count in the UBS case and was pending sentencing. The April 3 letter added the US was not investigating his possible role in Anglo Leasing.

"Birkenfeld is not and never has been under indictment or investigation by the US for his possible role in the Anglo-Leasing case," it reads.

However, Ranneberger said a US prosecutor would ask Birkenfeld about the Kenyan case at an interview scheduled for that day. Information obtained would be conveyed to Wako "to the extent possible under US law".

It is unclear what happened in that interview as the next letter the AG got was from Deputy Chief of Mission Pamela Slutz, saying the information would now only be available after a formal request for mutual legal assistance.

On August 20, the AG complained to the Ambassador that it has been four months since he made a formal request and no positive developments were coming from their end.

The Infotalent contract is one of the 18 Anglo-Leasing-type deals halted in early 2004.

Acting on false or fraudulent information, Government officials awarded a contract for Euros 59,688,250 to Infotalent in November 2003.

The company, which represented itself as being based in Switzerland, was supposed to supply and install a computerised law and order system for the Kenya Police.

The firm was also to install Closed Circuit Television cameras in major towns. The first two payments under this contract were made through two accounts in Frankfurt Germany and Geneva, Switzerland.

"We suspect that the first instalment was used to pay kickbacks to Kenyan authorities and the other to reward the masterminds behind the fraud … the ‘Kamani group’," a Kenya Anti-Corruption Commission brief to the US Government reads.

Birkenfeld acted for Infotalent as Managing Director. The firm was both the supplier and the financier of Project E-Cops.

However, it is not clear how this project was negotiated, procured and contracted.