By Jasper T. Mpiriirwe
An expert’s response
Every forgery must have an original and an originator
After reading the article: “Oil-bribes scandal in historical perspective” (The Independent, Issue no.) by Andrew Mwenda, I have been privately looking at what could have happened in this scandal now being investigated by an ad hoc committee of parliament. President Yoweri Museveni and others have said the documents alleging that Prime Minister Amama Mbabazi, Foreign Minister Sam Kutesa, and Internal Affairs Minister, Hillary Onek too bribes from oil exploration companies are forgeries.
But what do the documents reveal with some level of mathematical accuracy? I got the documents immediately after the Parliamentary session and I have studied each line. Surprising as it may seem, the revelation is more than what meets the eye.
Mens rea -of forgery
Forgery is committed for various reasons and can be as elusive as the mind of the fraudster. But in my experience I have never come across a document that is forgery ‘proof’ mainly because of the fact that any counterfeit must have an original and originator. For example there cannot be a counterfeit for a US$ 1000 bill because there is no such a bill and the reason of such forgery would defeat the main purpose of forging which is greed and to cheat.
What is the intention of forgery? Why should a person forge letters and documents that would literary shake the whole nation and criminalise others? There is a word in law known as “Mens rea”, which is Latin for “guilty mind” and is viewed as one of the ingredients necessary to initiate a forgery or commit a crime.
The standard law also has a test for criminal-liability usually expressed also in Latin as: “actus non facit reum nisi mens sit rea” which means “the act does not make a person guilty unless the mind is also guilty”. Therefore there can never be forgery (even in this case of oil-even if the papers were considered falsified) without an intention. The biggest question is who does this benefit and why, for example, should a person fake Tullow Oil’s document and seek out Onek and Kuteesa among the many?
Three cases stand out as a near perfect forgery in my experience while I worked with the Inspector General of Government up-to 2005. One was a forged UNEB O’Level certificate case that on face value appeared very genuine. A politician from Western Uganda had forged it because she wanted to get a position that required it as a minimum. When I visited the school the index number was not matching the number of students at that time. Later when I crosschecked the serial number(s) on the certificate, they did not match the primary UNEB identifiers of that year. Further still the Secretary was not the UNEB Secretary of that time. Scrutiny showed it was a clear forgery.
Another case involved cheques where one of the principal signatories had his signature ‘perfectly’ duplicated. When he was shown the cheques he agreed that it was his signature. But when he checked the records he remembered that at that period he was on leave out of the country, and the activity in question had been put off. When the issue of the date was brought before the fraudsters; they confessed the forgery.
The last case involved a Tender Board that stated that it sat on 3rd June 2004 to award a Shs 242 million construction tender to a company that belonged to the Chairperson of the district. That was almost double the original cost. What I found later in this near perfect forgery was the issue of dates falling either on weekends or like the above on a known public holiday-Martyr’s day.
So when I got the oil bribery documents, I studied them line by line and read the meaning and interviews of the persons behind the saga; including the Police letters from Malta and United Kingdom by Insp. Maurice Curmi and detective Sergeant Simpson George respectively.
I will now highlight the key features on the letter, transaction records and specifically analyse the places, dates, persons, codes and numbers so as to state that in all probability the records are either valid or not.
This has been done in light of the fact that we need to dig out the truth irrespective of the intention of the perpetuators. My write up is therefore based on the face-value of the documents and I intend to give guidance to the investigators on where to emphasise in order to adequately uncover this case. Since am using available public information, I believe this is not to pre-empt any action but rather to encourage more vigilance to the benefit of both parties I guess.
I don’t agree with Mwenda that this should be left as if there are no clues or affected parties. To leave it would be the highest level of injustice to all parties. Someone should be able to find out whether this indeed is a forgery and possibly the initiator of such, so that in one way or another there is a clear report. If I was one of the accused I would want to get to the bottom of this: who is behind spoiling my otherwise good name?
I have covered only the transactions that were alleged to have been paid for the period 1st June to 15th August 2010. The analysis is for only the Power of attorney issued by Tullow and subsequently all transactions by cash and to bank accounts belonging to East Africa Development and Hillary Onek.
I first looked at the letter titled “LETTER OF POWER OF ATTORNEY TO Mr. Brian Glover” which has been treated as exhibit 1 (E1). Note the case for the name is in lower while the rest is capitalised. Is it possible that the name Brian Glover was inserted to help explain power of attorney to some other entity as registered on 1st June 2010? This is a possibility because the Bank seems to have resisted the first filed letter.
This E1 document has an address of the sender on top stated as that of Tullow Oil in Cape Town South Africa. Is there such an address for the company ? Tullow Oil has an address like the one mentioned as follows: Tullow South Africa (Pty) Ltd; Convention Tower, 11th Floor; Cnr. Heerengracht Street and Coen Steytler Avenue; Foreshore; Cape Town; South Africa Tel: +27 (0) 21 400 7600; Fax: +27 (0) 21 400 7660. The only slight difference is the box number on the letter that does not appear on the website. It is therefore true beyond doubt that the sender is one and the same. Further still the logo on the letter appears like that of Tullow oil on other key official documents that I have accessed including the Annual Reports and their prospectus.
It is addressed to a bank in the names of ‘Bank of Valletta p.l.c., 58 Zachary Street, Valletta VLT 04, Malta’. Is there such a bank and branch? The finding is that it is also true that there is a bank in the same names and address : Bank of Valletta plc (BOV). Zachary Street 58. MT VLT 04 Valletta – Malta Tel.: + 356 21 31 20 20 – Fax: +356 22 75 37 00. It is therefore true beyond doubt that the addressee is one and the same bank in Malta and not a fiction.
It is addressed to the “Chief Executive Officer” and that person is as well addressed as a “Dear Sir”. I set to establish whether the title of the top person in this specific bank is so and whether the gender is male. It was established that one, Mr. Tonio Depasquale is the Chief Executive Officer of the said bank. Not a Bank Manager or a Managing Director but a “CEO” as stated in the letter. Again beyond doubt the writer and addressee have a high level of accuracy.
What about the dates? Written on 3rd June 2010, it would be a sham if it was in Uganda because that is a known public holiday (Martyrs day) but in this case it was written from South Africa and it was a Thursday a normal working day there and in Malta. The letter referred: “ to the power of attorney registered in your office on the 1st of June 2010,…” which was a Tuesday and also neither a weekend nor a public holiday but a normal working day in both countries i.e Malta and South Africa.
It introduced one Mr. Brian Glover as an authorised person to make payments in cash up to 500,000 Euro (five hundred thousand) to the introduced Representative of East Africa Development Ltd, Sam Kahamba Kutesa born in Sembabule Uganda the 1st of February 1949. It was established that Mr. Brian Glover was at that time the Managing Director Tullow in Uganda. On the other hand Sam Kahamba Kuteesa was indeed born on 1 February 1949 in Sembabule Uganda. He was at that time the Minister of Foreign Affairs; a post he holds to date.
The letter was signed by Aidan Heavey; a separate analysis of a signature of Mr. Aidan Heavey reveals a striking likeness on other key official documents that I have accessed including the Annual reports and the prospectus as a Chief Executive Officer of Tullow Oil plc and that is what he is known to be as well as a founder member.
On the bottom of E1 is Tullow registration indicating that it was Registered in England and Wales No. 3919249 and Registered Office: 3rd Floor, Chiswick Park, 566 Chiswick High Road, London W4 5XT: All official records confirm this that Tullow Oil plc was incorporated in England and Wales under No. 3919249 on 4th February 2000 in Registered Office 9, Chiswick Park, 566 Chiswick High Road, London W4 5XT. Again beyond doubt the address of registration is that of Tullow with a high level of accuracy.
What does E1 then reveal? That it is not a forgery because all the elements that would constitute a forged documents are not in this particular document. However, if it is a forgery, then it is a perfect one for fraud within Tullow itself. It is clear that it was made in such a way and signed by officials within for a particular purpose that will be reflected on in subsequent posts.
The biggest proof of forgery on documents especially concerning payments through the bank is lack of consistency and disparity on places, time, codes as well as misdirected dates in the transactions. One looks for weekends and public holidays and strange codes to prove that there was no transaction at all or falsification of any document. Line by line analysis of Exhibit 2-12 (E2-E12) with E2 and E3 are cash transactions, E4-E7 are payments to East African Development Ltd and E8-E12 to Onek and the following was revealed:
Its address is the bank in the names of ‘Bank of Valletta p.l.c., 58 Zachary; Street, Valletta VLT 04, Malta. The logo on the letter appears like that of the bank on other key official documents that I have accessed including the Annual Reports and their prospectus on the website. All the documents have a transaction reference number No.: 53243XXX which is different per transaction depending on the date and time as will be shown later. Below the transaction number is the words ‘Payment to Third Parties’ which indicates that is not to the banker or its agent but to a different party.
It also indicates that it was printed by Mr. Brian Glover; which has a confusing revelation because if he is an employee of Tullow Oil: how would he access the bank system to order printing? The only explanation could be if the bank posts electronically all Tullow’s transactions and then an authority within prints the transaction. This therefore poses a more serious question on whether it is a bank transaction document or Tullow’s. That notwithstanding it further indicates the printing date and time that is ably analysed in the table below. All the documents have a similar document id 72085539 in a way referring that they are of a similar transactional nature to a ‘Third party’. Like the document id the source account number was the same throughout i.e 40037242019 (EUR) and a reconfirmation must be made on whether Tullow Oil between June and August 2010 ran a Euro account in this bank.
On one hand the beneficiary account numbers were basically two with two cash transactions all in Euros. The first beneficiary account is cited as GB36EFB17800000491740 in EFG Private Bank Ltd; allegedly belonging to East Africa Development Ltd in United Kingdom. Details are as posted in Table 1 below:
Analysis of payments allegedly to East Africa Development Ltd
The following were payments in respect to what is termed as ‘other professional fees’ to East Africa Development Ltd.
Two cash payments are made in London to Glover Brian on Friday June 4, 2010 and Tuesday July 6, 2010. Each is 500,000 Euros and that is the limit in lieu of the Power of Attorney dated June 3, 2010. Had the amount been beyond that, one would outright state that the documents are false. Does the bank own a branch in London to warrant Glover to withdraw from there? This does not matter a lot because of e-banking where clients are served anywhere in the world. The bank’s website even indicates how one can be served via the net.
The other beneficiary account was 003450627 in Emirates Bank Ltd; allegedly belonging to Hilary Obaloker Onek in United Arab Emirates. Details of the payments in respect to what is termed as ‘other professional fees’ to Hilary Obaloker Onek.
The transactions indicate a SWIFT code which in simple terms is a standard format of Bank Identifier Codes (BIC) and is unique identification code for a particular bank. These codes are used when transferring money and messages between banks. A standard SWIFT code consists of 8 or 11 characters. When 8-digits code is given, it refers to the primary office.
First 4 characters – only in letters reflect a bank code
Next 2 characters – only in letters are a country code
Next 2 characters – letters and digits represent the location code
Last 3 characters – letters and digits are a branch code (Primary office) and they are optional
In these documents, the SWIFT Code provided for EFG Private Bank Ltd is EFGBGB2L. The first 4 EFGB stand for the Bank (without the word Private); the second two characters GB stand for Great Britain (modern UK) and the last two are the branch which is 2L (London). The bank’s code for all International Bank Wire Transfers to EFG Private Bank Limited is EFGBGB2L this code is the same indicated for the Bank’s branch located in London, United Kingdom. Again beyond doubt the document reveals that the swift Code matches that of this bank with a very high level of accuracy. Restated simply SWIFT code is a standard format of Bank Identifier Codes (BIC) and it is unique identification … 357, EFG PRIVATE BANK LIMITED, LONDON, EFGBGB2LXXX . Like the Tullow account in Malta, the beneficiary account number was the same throughout i.e GB36EFG817800000491740 (EUR) and a reconfirmation must be made on whether East Africa Development Ltd. between June and August 2010 operated a Euro account in this bank (EPG).
In the other case the SWIFT Code provided for Emirates Bank Ltd is IRVRTUS3N. The first 4 IRVR stand for the Bank and all searches indicate that all Emirates banks have a different code. The second two characters TU stand for a country is also not available and the last three are the branch which is S3N and was also failed to be located. The swift code left a certain level of doubt on the document revelation given that the swift Code does not match that of the banks in UAE.
The beneficiary address
For the first transactions the bank address is very clear as EFG Private Bank Limited, located in London, United Kingdom. The Beneficiary address is given as a City and Code of Nairobi and 00691 respectively. As earlier stated East Africa Development Ltd as a registered entity was never traced. But the postal Code given and the city of Nairobi exist. Search for who could have hosted the company became fruitless because it was established that more than 200 companies and entities use this address. Some of them in Nairobi’s industrial area are Estate Agents, Oil Companies, Embassies etc. So the Code and location exist but no one can confirm the company or physical place unless the bank form is accessed from the paying bank. East Africa Development Ltd as a company remained mysterious in my investigations. Attempts for me to get its contacts or at least papers of registration in Kenya from October 15th to November 17th were futile. But in the case of Anglo Leasing in Kenya and the Goldberg scandal, fictitious companies were used in the UK to receive millions of United States Dollars.
On the other hand while the Swift Code for payments to Onek was not there the address given of Emirates Bank P.O. Box 2923 Dubai is in existence with the following branches sharing the address and some of them the same telephone:
So what could this Code represent? Further searches indicate that the Code reflected i.e. IRVRTUS3N is that of New York International Bank. The big question is whether Emirates Bank operates an account there and subsequently if Onek has an account in Emirates Bank with a similar address above. Also like the Tullow account in Malta, the beneficiary account number was the same throughout i.e 0034 450 627 007 (EUR) and a confirmation must be made on whether Hilary Obaloker Onek between June and August 2010 operated a Euro account in this bank.
Analysis of the time of payments i.e. dates, hour, days
It was established that the transactions were carried out on normal working days. Focus was put on weekends and public holidays; for example when 06th July payment was first misread as 7th June, it was noted that in Malta it is a national holiday. Based on the time of payment and invoice making not falling on a weekend and public holiday in Malta (with the highest number in Europe of holidays) again beyond doubt there is a high level of accuracy that the documents are not forgery.
Invoice date and day
Similarly it was established that invoicing dates for the transactions were done on normal working days. Focus was put on weekends and public holidays and it was established that they were on normal working dates of 2010. On each of EADL’s transactions the invoicing was done on each transaction other than what is recorded as cash. On the other hand payments to Dubai are not invoiced and they are recorded as down payment on professional services implying that there was an invoice earlier developed indicating the total amount payable. Again beyond doubt the dates on the invoice reflect that the documents are not forged.
Document ID and Transaction Reference
It was established that the transactions were carried out using one Document ID number 72085539 which has a high level reflection that the payments are similar. However transaction IDs are different for each document and they are arrayed in order of time of processing. The following table clarifies that indeed this reference is orderly except for one transaction of 05/08/2010 that has a ‘wild entry’:
From the table above other than the last figure the range indicates a very high level of accuracy within the dates when the transactions took place and the transaction reference. Even when there were similar dates of transaction like on 10/06; 21/06; 06/07 have a range of 4, 6, 5 respectively for a time range period of 21, 30,21 minutes respectively meaning that there are quite many transactions per day averaging 1 transaction per 5 minutes. Note also that on 12th July there were two transactions one at 8.08 having a higher Transaction number than the one at 09:08. The explanation is basically in the invoicing one having been done on 16th July 2010 meaning that it was cleared on 16th hence the small range for the subsequent transaction of 16th July 2011 to Onek.
There is a close correlation between the transaction date of 04/06 and 05/08 the range being 1 and the inter-time range being 2 months, 1 day and 23 minutes. The invoice details would be very important to establish whether these transactions never took place the same day and therefore time. In absence of the invoice date on both transactions it is not conclusive on what could have happened given the consistence in transaction reference numbers.
Other areas of interest
It would be very interesting to get details of Brian Glover’s passport and that of Sam Kuteesa to see where particularly they were in respect to Cash payments dated 04/06/2010 and 06/07 respectively. A bribe allegation of such amount can either be handed over or banked to a bank account somewhere by the spin masters. If I were Sam Kuteesa I would have already thrown my passport around to prove that during those days I was in Sembabule campaigning! Though that does not disprove the allegation but it in a way becomes the beginning of a process of cleansing. Similarly it becomes a trend that after such hefty payments, a person like Onek would travel to make withdraws. His passport would help to see whether there is a direct correlation between his travels and deposit dates.
2. Declarations to the IGG by Sam Kuteesa and Onek Hilary
I am also interested to look at two previous declarations by the ministers to the IGG especially their foreign accounts and location. This would also bring out the net-worth before June 2010. If somebody got millions of Euros most probably something happened fundamentally from June to date because people are no longer safe with their funds on accounts.
3. Capacity to pay by Tullow:
I reviewed all Tullows financial reports and it is very clear that there is capacity to pay. But on the other hand some of these transactions can be reflected as corporate investments that do not attract taxes but instead a tax refund. Previously in Britain there was no tax on ‘’bribes to African dictators’’ but this has long been dispensed off by the OECD declarations and the Bribery Act is in force in Britain that may lead to potential prosecutions.
4. Why Onek and Kuteesa ?
Onek’s case is rather self-explanatory because he served as the Minister for Energy & Minerals at the time of the alleged payments. Kuteesa’s however is tricky unless he extorted on the issue of Oil refinery that is directly under his Ministry especially tenders for capacity assessment. However all this could be false if there was a direct intention within to defraud using our ministers names. That is why the truth should not be gagged but rather brought out. Uganda is an infant oil baron and the allegations can only serve to invite the obvious curse!
Conclusion on payments
What does E2-12 then reveal? That the documents have a high level of accuracy and that they are not a forgery should not be a question. But they could have been made for fraudulent payments either internally or externally within Tullow Oil. A cheque may not be forged but it can be used for fraudulent purposes. This is because all the elements that would constitute a forged document are not in these particular documents with a very high level of mathematical confidence. However, if they are a forgery, then they are a perfect one for fraud within Tullow itself. It is clear that they were made on clear dates and bank codes that are in existence.
Jasper T. Mpiriirwe is a private consultant who has worked with the Inspector General of Government and the Anti-corruption Coalition Uganda.