Albert Henry
From Wikipedia, the free encyclopedia
 |
This article has been nominated to be checked for its neutrality. Discussion of this nomination can be found on the talk page. |
Albert Royle Henry (1907 - 1981) was a former Premier of the Cook Islands. A pioneer in Cook Islands politics, and a driving force behind Cook Islands self-government, which it obtained on 4 August 1965, Henry founded the Cook Islands Party and was elected Premier in 1965, then re-elected consistently until 1978.
He was knighted in 1974 by Queen Elizabeth II, shortly after the opening of Rarotonga International Airport. In 1979 he was found guilty of electoral fraud and the Queen revoked his knighthood.[1] He died in 1981. His grave can be found at Avarua CICC Church: there is a bust of him on his gravestone.
Regarding Albert Henry’s “Criminal Convictions” for electoral fraud in 1979, the following is a brief account.
[edit] ALBERT HENRY AND HIS “CRIMINAL CONVICTIONS”
On 16 August 1979, Albert Henry pleaded “guilty” at Rarotonga, Cook Islands, to a number of criminal charges relating to the fraudulent misuse of Cook Islands Government money totaling more than $355,000.00.
Albert Henry did not have a criminal trial. Not one witness was called to testify and not one piece of evidence was presented in Court to justify him being prosecuted in the first place.
And yet he was forced to plead Guilty to conspiracy charges to defraud the Cook Islands Government simply because he had no other choice.
Albert Henry was “coerced” into pleading Guilty by the then Cook Islands Superintendent of Police and the Crown Prosecutors of that time. This was because the Crown did not have sufficient evidence to go to trial and subsequently obtain various criminal convictions against him.
The only way to convict Albert Henry was to “trick” him…and that is what they did.
Going back several days previous…
On the evening of 10 August 1979 a United States citizen, Finbar Kenny, a multi-millionaire in his own right, landed on Rarotonga totally unexpected. Kenny was the person behind the Cook Islands Philatelic Bureau. He checked into the Rarotongan Hotel under Police protection and no person was allowed to meet or talk with him.
Next morning Finbar Kenny appeared in Court and pleaded “guilty” to a conspiracy charge to defraud the Cook Islands Government. He was convicted and fined $200.00.
The Cook Islands Development Company, being the Cook Islands-based and registered company that operated the Philatelic Bureau, was also charged with the same conspiracy offence. Its Managing Director Jim Little, pleaded “guilty”, and the company was convicted and fined $200.00.
Then Jim Little, as an individual, pleaded “guilty” to the same Conspiracy offence. He was also convicted and fined $200.00.
Immediately after these three convictions, the Judge adjourned the Court Hearing for three days. The whole session took about half an hour.
Later that afternoon Finbar Kenny paid his fine. He also handed over a cheque to the Cook Islands Government for $337,000.00. That evening Finbar Kenny flew out to Tahiti and a short time later returned to the United States.
Later that same evening, Albert Henry was told by his legal counsel that he now had no option but to change his original plea of “not guilty” to Conspiracy charges to that of “guilty”.
Albert was told that a basic principle of law had now been established. This being that if two or more persons are convicted of a Conspiracy charge, then the Court takes it as a fact that such a conspiracy did exist. Those others charged with the same offence were automatically deemed “guilty” as a consequence. In this case there had been three convictions to a “Conspiracy to defraud the Cook Islands Government”. So Albert Henry, having been charged as a co-conspirator, was therefore “Guilty” as charged.
It was a fait accompli. He had no choice but to change his plea to that of “guilty”.
On 16 August 1979, Albert Henry most reluctantly pleaded “guilty” to “Conspiring to defraud the Cook Islands Government” under Section 280 of the Cook Islands Crimes Act 1969. He also pleaded “guilty” to a breach of the Cook Islands Public Money’s Act 1969.
However, unbeknown to Albert Henry and virtually everyone else on Rarotonga at this time, various events had recently taken place in the United States. There Finbar Kenny had himself been manipulated into a position whereby he had no choice but to go to Rarotonga and plead “guilty” to Conspiracy Charges to defraud the Cook Islands Government.
In being forced to plead “guilty”, Finbar Kenny was also wrongly convicted of conspiracy charges” in the Cook Islands. But Kenny had pleaded “guilty” on Rarotonga for a number of wrong reasons.
[edit] FLY-IN VOTER SCHEME FROM NEW ZEALAND
Going back more than 18 months to early January 1978, the Premier of the Cook Islands Albert Henry, and his Cook Islands Party Government concluded that a General Election would be held in the Cook Islands on 30 March 1978.
As with the two previous elections of 1972 and 1974, voter support for the Cook Islands Party and the Opposition Democratic Party was very evenly split on Rarotonga. This island contained nine constituencies in the 22 member Cook Islands Legislative Assembly. The 13 constituencies that represented the outer islands were solid 7 to 6 in favour of the Cook Islands Party.
For several previous General Elections, everything hinged on the nine constituency seats on Rarotonga. Whichever Party “won” Rarotonga would therefore win the General Election.
The Electoral Laws of that time provided for people to remain eligible to vote in a Cook Islands election for an absence overseas of up to three years. However, there were no provisions for absentee or postal voting. So, in order to cast that vote, an elector had to physically return to Rarotonga and vote on Cook Islands soil for the constituency in which that person lived prior to emigrating.
For the 1974 General Election, the Democratic Party chartered a flight from Air Nauru and with sponsorship funding they subsidised 75 of their supporters from New Zealand to fly back to Rarotonga to vote in the constituencies of Rarotonga thereby setting the precedent for subsidised fly-in voter/supporters. But this initiative failed and Albert Henry and the Cook Islands Party were returned to office.
In the lead-up to the 1978 General Election, it was common knowledge on Rarotonga that the Democratic Party was going to subsidise their fly-in supporters once again. So on this occasion Albert Henry concluded that the Cook Islands Party was going to do exactly the same thing. It would fly in supporters from New Zealand as well.
At various times previously, Finbar Kenny had told Albert Henry that if he ever needed any money, then all Albert needed to do was to ask him.
So on 12 January 1978, Albert Henry wrote to Finbar Kenny in the United States asking if financial assistance could be available from him to assist the Cook Islands Party with its campaign expenses? While no figure was mentioned, the inference was that many thousands of dollars would be required as the main expense would be to pay for charter flights to bring Cook Islands Party supporters from New Zealand to Rarotonga to vote in the General Election.
Finbar Kenny replied with two letters dated 23 January 1978 in which he advised Albert Henry that he was willing to financially assist. Kenny then instructed Jim Little at the Philatelic Bureau, to pay for any expenses involved in Albert obtaining firm costings on various plane charters.
Albert Henry and Jim Little left Rarotonga on 8 February 1978 and after flying to Auckland, they flew on to Melbourne, Australia. There Albert Henry obtained a firm quote from Ansett Airlines for $Aust290,000, to provide six return flights Auckland to Rarotonga a few days prior to the election on 30 March 1978.
With that information in hand, Albert Henry and Jim Little flew to Honolulu, Hawaii, where they met with Finbar Kenny who had flown there from New York. Finbar Kenny agreed to give Albert the money to pay for those flights, and this arrangement was concluded with a hand-shake.
At this meeting on 18 February 1978, there was no suggestion from either side that Cook Islands Government money due from the Philatelic Bureau would be involved. Neither man had that intent.
Their arrangement was for nothing more than a political donation from Finbar Kenny to Albert Henry to financially assist the Cook Islands Party to hopefully win the General Election.
The motive for Finbar Kenny to financially support Albert Henry and the Cook Islands Party was two-fold. Firstly, Finbar Kenny liked the man. He liked the way Albert and the Cook Islands Party had been administering the Cook Islands for more than twelve years.
Secondly, and this is more significant, Finbar Kenny very much disliked the leadership of the Democratic Party, which for several years previously, had publicly “bad-mouthed” Finbar Kenny and the Philatelic Bureau in the Cook Islands.
They accused Kenny of “ripping-off” excess profits, shady under-hand deals and unscrupulous business practices. All of this was not true and so Finbar Kenny was only too pleased to financially support Albert Henry and the Cook Islands Party in an effort to prevent the Democratic Party from winning the General Election.
[edit] FOREIGN CORRUPT PRACTICES ACT 1977
However, Finbar Kenny insisted that the money could only be given in a way that would apparently prevent him from breaching the Foreign Corrupt Practices Act 1977.
This Act had come into force in the United States the previous year as a result of American corporations, including Lockheed, making financial contributions to foreign politicians in return for future Government orders and contracts.
This law was therefore referred to as the “Lockheed Law.”
Finbar Kenny suggested that a two company format be established to enable him to transfer funds to an apparent Cook Islands Government company. After that, the funds involved would go to a second non-Cook Islands Government Company and from there the funds would go to Ansett Airlines to pay for the air charters.
In the weeks that followed…that is basically what happened.
If Finbar Kenny had not been making a political donation to Albert Henry, but rather, had agreed to advance funds which would later be deducted from Philatelic Bureau revenue due to Government for 1978, then it would not have been necessary for this subterfuge.
If Finbar Kenny and Albert Henry had agreed that funds advanced would be future Government revenue, then Finbar Kenny would not be in breach of any provisions of the Foreign Corrupt Practices Act 1977. This was because it was not illegal for a United States citizen, or an American company, to advance funds to a foreign Government in lieu of future royalty entitlements.
If a politician of that foreign Government then “ripped-off” those funds for private political purposes in his home country, then this would be of no concern to the United States citizen or to the American company.
They could not be held accountable in the United States if a foreign politician, they had business dealings with, happened to be “crooked” and defrauded his own Government…in his own country.
However, in this case, Finbar Kenny was not about to advance funds that would be due to Government for 1978, and Albert Henry was not intending to defraud his own Government.
[edit] MOST OF THE FUNDS CAME FROM NEW YORK
Finbar Kenny arranged for most of the funds needed for the charters to be transferred from New York to the Philatelic Bureau External Account in New Zealand.
On 14 March 1978, Jim Little gave Albert Henry a cheque for $337,000, being the approximate equivalent to $Aust290,000 to pay for the charters.
The funds then went through the two-company process, as initially requested by Finbar Kenny, before payment was made to Ansett. Six charter flights then flew a total of 445 Cook Islands Party supporters from New Zealand back to the Cook Islands to vote for their candidates in the General Election.
At the same time, the Democratic Party flew in a total of 344 supporters to vote in the various constituencies on Rarotonga. Of this number, 140 flew on normal Air New Zealand scheduled flights and 204 flew on two charters from Air Nauru. Those who flew by Air New Zealand had most, if not all of their fares paid for by the Democratic Party organisation in New Zealand. Those who flew by Air Nauru actually flew for free… even though they were each issued with airline tickets suggesting that each of these electors had paid $245.33.
The Cook Islands Party won the General Election by 15 seats to 7 and so was returned to office. Immediately after the election, the Democratic Party filed a number of Electoral Petitions claiming bribery and corruption on the part of the Cook Islands Party.
In particular it was claimed that the money given by Finbar Kenny to Albert Henry was an advance on Cook Islands Government revenue that would be due from the Philatelic Bureau for 1978.
[edit] UNITED STATES AUTHORITIES GET THE “TIP-OFF”
The Electoral Court Hearings opened in Auckland on 3 May 1978.
A short time after that, Elliott Khan, the Cook Islands Superintendent of Police, “tipped-off” the United States authorities that one of their citizens, Finbar Kenny, may have breached the Foreign Corrupt Practices Act 1977 by giving Albert Henry and the Cook Islands Party a very large political donation.
Khan was a New Zealander working under contract to the Cook Islands Government.
This “tip-off” came by way of the United States Consul’s Office in Auckland which Elliott Khan visited in May 1978 requesting copies of this Act. In the process, he advised Consul staff as to the reason for his request.
This information was immediately referred to Washington and within a matter of days Finbar Kenny was told that the U.S. Justice Department was on to him. It was about to investigate his apparent political donation to Albert Henry and the Cook Islands Party as a possible breach of the Foreign Corrupt Practices Act 1977.
A U.S. Justice Department investigation was the last thing Finbar Kenny wanted to happen.
So he started to shift the “goal-posts”. Kenny started to cover his tracks and re-write history. Finbar Kenny attempted to put in place whatever was necessary to “protect himself” from any possible investigation from the United States authorities under the Foreign Corrupt Practices Act 1977.
One of his agents on Rarotonga wrote two letters that were back-dated up to three months previous, and so prior to the Cook Islands General Election. These back-dated fraudulent letters suggested that all money given to Albert Henry, by way of Jim Little and the Philatelic Bureau, were advances on Cook Islands Government revenue that would be due from the Philatelic Bureau for 1978.
One of these letters back-dated to 24 February 1978, involved $14,978. A second letter back-dated to 13 March 1978 concerned the $337,000 used to finance the Ansett Airline flights.
These two letters in particular were designed to convince the United States authorities that Finbar Kenny had not breached any provisions of the Foreign Corrupt Practices Act 1977.
As it happened, these two letters ended up “hanging” Finbar Kenny in the United States rather than “saving” him.
The Electoral Hearings came to an end on Rarotonga on 30 June 1978.
On 24 July 1978, Chief Justice Gavin Donne handed down his Electoral Court Determination in which he concluded that all the Cook Islands Party Ansett fly-in voters had been bribed and so their votes were unlawful. He also concluded that all money given to Albert Henry had been an advance of Philatelic Bureau revenue due to the Cook Islands Government for 1978.
So, concluded Judge Donne, corruption had taken place on a grand scale.
The Electoral Court hearings did not consider, or take into account the fact that the Democratic Party had also flown in their own supporters from New Zealand to vote in the General Election. They had traveled either by Air New Zealand or Air Nauru. Most of them had flown for free. But the Democratic Party votes were counted. The Cook Islands Party votes were declared invalid.
Disallowing all those votes cast by voters on the Ansett flights meant that 8 Cook Islands Party candidates on Rarotonga, including, Albert Henry, lost their seats in the Legislative Assembly.
Not only were 8 new Democratic Party candidates then sworn in as members of the Cook Islands Legislative Assembly, but there was also a change of Government. Later in the day of 24 July 1978, the new Democratic Party Government was sworn in to govern the Cook Islands.
[edit] CRIMINAL CONVICTIONS MUST FOLLOW
Judge Gavin Donne based his judicial determination on three things.
Firstly, he concluded that electoral bribery had taken place in regard to the Ansett fly-in voters and so there had been breaches of the Cook Islands Electoral Act 1966. Secondly, he concluded that Albert Henry had breached the Cook Islands Public Money’s Act 1969 by the way in which the money was transferred through the two-companies as directed by Finbar Kenny. And Thirdly, that Albert Henry had breached the Cook Islands Crimes Act 1969 by taking more than $337,000 of “Cook Islands Government money” and using those funds for private political purposes.
As a result, Gavin Donne’s Determination changed the Government of the Cook Islands.
However, it was then up to the new Democratic Party Government to ensure that criminal charges were brought against Albert Henry and others, based upon the Judge’s findings.
Failure to obtain any convictions against Albert Henry, would mean that Gavin Donne in his Determination of 24 July 1978 was wrong. If there were no convictions, then Gavin Donne had no justification in bringing about a change of Government in the Cook Islands under the circumstances that he did. Failure to obtain any convictions against Albert Henry would also mean that the Ansett “Fly-in” votes were not unlawful and should have been allowed by Gavin Donne.
Subsequent to his Judicial Determination, all documents accumulated during the Electoral Court Hearings were handed over to the Police. This was so they could prepare appropriate criminal charges against Albert Henry and others.
[edit] INSUFFICIENT EVIDENCE TO PROSECUTE
But the Superintendent of Police, Elliott Khan, soon realised that he had insufficient evidence to prosecute Albert Henry. Gavin Donne’s conclusions were not backed-up by hard evidence of the kind needed to secure the various convictions.
Khan’s only hope was to persuade Finbar Kenny to travel to Rarotonga and testify as the “chief witness” in a criminal trial against Albert Henry.
At a meeting in Los Angeles in September 1978, Elliott Khan asked Finbar Kenny if he would testify in a Court of law, that all the money he had given to Albert Henry, had been an advance on Philatelic Bureau revenue that would be due to the Cook Islands Government for 1978…as per the two back-dated letters of 24 February and 13 March 1978 respectively.
But Finbar Kenny refused to co-operate.
He told Elliott Khan that he would not travel to Rarotonga and testify in Court that the money he had given to Albert Henry was an advance on future Philatelic Bureau revenue.
The reason for this was because Finbar Kenny did not want to go into a Court of law in the Cook Islands and commit perjury…simple as that.
From this point on, as far as Elliott Khan was concerned, Finbar Kenny was no longer regarded as a “Chief witness”…but rather - he was now a “co-accused”.
[edit] WHY THE DELAY?... WHY IS IT TAKING SO LONG?
As the weeks turned into months following the change of Government on 24 July 1978, and still no criminal charges had been laid against Albert Henry, it became almost common knowledge on Rarotonga that the delay in bringing charges was because the Superintendent of Police and the Crown Prosecution could not put a case together against Albert Henry.
They simply did not have the evidence to prosecute.
There had been allegations aplenty in the past by Albert Henry’s political opponents. But these various allegations could not be substantiated with solid reliable evidence.
The Cook Islands “Coconut Wireless”, being the local “gossip machine”, had accused Albert Henry of all sorts of corrupt activities. But these rumours were nothing more than “political propaganda” on the part of Albert’s political opponents, and so could not stand up against the facts.
In many respects, Judge Gavin Donne had previously taken some of these “Coconut Wireless” rumours to be true. He had also accepted much of the Democratic Party pre-election campaign political propaganda as factual.
However, Khan and company later discovered that rumour and innuendo were one thing. But factual evidence to back-up those rumours was a completely different matter altogether.
At the same time, questions were being asked within the membership and supporters of the Democratic Party as to why the delay? Why is it taking so long to prosecute? And what the “heck” was going on?
Gavin Donne had concluded there was sufficient evidence of bribery and corruption on the part of Albert Henry and the Cook Islands Party… to bring about a change of Government – so what was the delay?
During this period, Albert Henry continued to be the most popular politician on Rarotonga. The Cook Islands Party may have lost the Government amidst accusations of corruption, bribery and fraud, but that had not brought about a decline in its popularity or support for Albert Henry.
If anything, the level of public support had increased with the majority of people firmly of the view that Judge Gavin Donne…“had got it all wrong!”
[edit] CRIMINAL CHARGES LAID
In late November 1978, the Cook Islands Party began organising a Petition calling for the eight Democratic Party members for Rarotonga, who had been “appointed” by Gavin Donne on 24 July 1978, to resign and for by-elections to be held in their constituencies.
As a direct result of very heavy public support for this Petition, the Crown Prosecutor was forced to act (he was instructed by the Democratic Party Government to act) and so formal charges were laid against Albert Henry and others on 12 December 1978.
Two of these charges were for breaches of the Cook Islands Electoral Act 1966. These turned out to be nothing more than “trumped-up” charges which many months later were dismissed by the court.
Another charge was for a breach of the Public Money’s Act 1969, and three charges were for breaching Section 280 of the Cook Islands Crimes Act, 1969. The most significant charge was that of “Conspiring to defraud the Cook Islands Government” with the amount of $337,000 being cited.
Also charged with the same “Conspiracy” offence were Finbar Kenny, the Cook Islands Development Company, (being the company which operated the Cook Islands Philatelic Bureau), and that company’s Managing Director Jim Little. There were several others in the Cook Islands charged as well. However, once it became known, many months later, that Albert Henry was going to change his plea to “guilty”, then the conspiracy charges against these other individuals were withdrawn.
Apart from Finbar Kenny, all others charged appeared in the Avarua Courthouse on the morning of 12 December 1978 and pleaded “Not guilty” to all charges. The judge then remanded the case until 12 March the following year – 1979.
On 14 December 1978, the Leader of the Cook Islands Party “Parliamentary wing” Geoffrey Henry, tabled the Cook Islands Party Petition to the Legislative Assembly calling for the resignation of the eight “appointed” Democratic Party members of the Cook Islands Legislative Assembly.
This Petition contained 2229 signatures which represented just over 50% of the total voting population on Rarotonga.
However, the Government members blocked its every move and so in the end, nothing came of this Petition except to confirm that Albert Henry and the Cook Islands Party were as strong as they had ever been. Their level of support and popularity had not declined following the events of 24 July 1978 as many people had surmised.
One reason for this was because the Cook Islands Party supporters did not believe that Albert Henry had used “Government money” to pay for the Ansett flights. On the other hand, the Democratic Party supporters had nothing else to believe.
[edit] FINBAR KENNY CAME COMPLETELY "OUT OF THE BLUE"
On 12 March 1979, those charged the previous year, had their cases remanded until June. Then remanded again until July. And then remanded once more until August 1979.
And so it was that Finbar Kenny arrived completely “out of the blue” at Rarotonga on the evening of 10 August 1979. The following day he pleaded “guilty” to “Conspiracy Charges” and was convicted. Both the Cook Islands Development Company and that Company’s Managing Director Jim Little also pleaded “guilty” and were convicted.
Later that night, Finbar Kenny left Rarotonga and flew back to the United States leaving Albert Henry in a “no win” situation.
Having no other option, Albert Henry most reluctantly also pleaded “guilty” to “Conspiracy Charges” and to a breach of the Cook Islands Public Money’s Act 1969 on 16 August 1979.
Not one witness was called to give evidence and so there was no trial whereby a case against Albert Henry was proven in a Court of Law. He was sentenced four days later receiving fines totaling $3,600.
Finbar Kenny’s sudden appearance, and subsequent “guilty” plea, came as a complete shock to almost everybody on Rarotonga. There was no public statement, or “Coconut Wireless” rumour, to explain his actions.
It was not until February 1980, the following year, that Albert Henry found out what really had gone on in the United States and the circumstances which led Finbar Kenny to travel to Rarotonga and plead “guilty” to “Conspiracy Charges” on 11 August 1979.
[edit] TWO SEPARATE INVESTIGATIONS
The Cook Islands Superintendent of Police Elliott Khan and the Crown Prosecutors, who were two lawyers from New Zealand, had known all along that they did not have sufficient evidence to successfully prosecute Albert Henry in the Cook Islands.
They knew the two letters of 24 February and 13 March 1978, suggesting that money given to Albert Henry was an advance of Philatelic Bureau revenue, were both back-dated frauds. As evidence in court, they would be absolutely “use-less”.
Proof that Albert Henry had defrauded the Cook Islands Government therefore did not exist. Evidence that he had “stolen” Government money was non-existent.
They had no case against Albert Henry…and all three of them knew it.
So what Khan and company did following Khan’s meeting with Finbar Kenny of September 1978 was to work in conjunction with officials from the United States Justice Department and assist them in their case against Finbar Kenny for his alleged breach of the Foreign Corrupt Practices Act 1977.
In this way Khan and company were involved with two separate investigations, in two separate countries, with each investigation trying to prove two different things.
In the United States, the Justice Department was trying to prove that Finbar Kenny had breached the Foreign Corrupt Practices Act 1977 by giving Albert Henry a "bribe" by way of a “political donation”. But in the Cook Islands, Khan and company were trying to prove that Albert Henry had “stolen” that same money from the Cook Islands Government, with the money involved apparently being an advance on future Philatelic Bureau revenue…two completely different things.
If Finbar had given Albert a "bribe"... mthen no Cook Islands Government money would be involved. If Finbar had given Albert an advance on future Philatelic Bureau revenue... mthen quite clearly, Finbar Kenny was not in breach of any provisions of the Foreign Corrupt Practices Act 1977.
Khan and company were very much aware that they could not get a conviction of Albert Henry in the Cook Islands. So what they did was to manipulate, hoodwink and deceive officials of the United States Justice Department in order to get a conviction against Finbar Kenny in the United States as a way to then get a conviction against Albert Henry in the Cook Islands.
On 2 August 1979, eight days before his unexpected arrival at Rarotonga, Finbar Kenny pleaded guilty and was convicted in the District Court for the District of Columbia, Washington D.C., under Section 104 (a) of the Foreign Corrupt Practices Act 1977, for giving Albert Henry a "bribe" by way of a “political donation” to assist the Cook Islands Party to win the 30 March 1978 General Election.
In bringing this charge against Finbar Kenny, officials from the U.S. Justice Department relied on Khan and company for appropriate background information to substantiate their case against him.
Officials from the Cook Islands Government “fed” the United States Justice Department with information that, in the most part, was wrong and/or incorrect. The United States officials accepted this information as being honest, truthful, accurate and correct, when in fact most of what was supplied was laced with distortion and deliberate deception.
[edit] FINBAR KENNY... "CORRUPT INTENT"
In bringing a charge against Finbar Kenny under the Foreign Corrupt Practices Act 1977, there had to be proof of a “corrupt intent” on Kenny’s part.
In this regard, the “corrupt intent” was deemed to be that the $337,000 Finbar Kenny had given Albert Henry was an inducement (or a bribe), for Albert and his Government to later renew Kenny’s Stamp Distribution Agreement with the Philatelic Bureau when it came up for review during the next term of Government.
In other words, the United States Judiciary concluded that Finbar Kenny had bribed Albert Henry to the extent of $337,000. Therefore, Kenny had breached the Foreign Corrupt Practices Act 1977.
However, this assumption was factually incorrect. It was a nonsense.
At this time, the life of a Cook Islands Government was four years. The next General Election would not be due until March 1982. But Finbar Kenny’s Stamp Distribution Agreement did not expire until September 1982.
That would be at least six months after the 1982 General election.
If Finbar Kenny wanted to “rig” a General Election in the Cook Islands, to get a renewal of his Stamp Distribution Agreement, then it was the 1982 election that Kenny needed to “rig” and not the one in 1978. The charge against Finbar Kenny in relation to Section 104 (a) of the Foreign Corrupt Practices Act 1977 does not stand up to the facts.
In charging Finbar Kenny, the Justice Department submitted to the Court a document entitled the “Offer of Proof”. This was a background document justifying the charge. For this information, the United States Justice Department officials relied totally on the Cook Islands Government officials.
But this document is more fiction than fact. It should be called “Errors of Fact” rather than the “Offer of Proof”.
According to this document : “both Albert Henry and Finbar Kenny had conspired to defraud the Cook Islands Government of $337,000 as being an advance of future Philatelic Bureau revenue.” This statement was totally untrue.
They had been charged with this offence in the Cook Islands, pleaded “Not Guilty” and so a conspiracy to defraud had yet to be proven. And yet the “Offer of Proof” clearly implied that such a conspiracy had already been proven in a Court of law. That both Finbar Kenny and Albert Henry had been found to be “guilty”. So both men had already been convicted for such an offense.
Based on this distorted misrepresentation, it is obvious that the Justice Department officials concluded that Finbar Kenny was just as “crooked” as Albert Henry, because Kenny was the person who had apparently financed Albert Henry’s corruption in the Cook Islands.
The “corrupt intent” on the part of Finbar Kenny was to have his Stamp Distribution Agreement renewed by the next Cook Islands Government. Once again, this was not correct because Kenny’s Agreement did not come up for renewal until after the 1982 General Election.
The “Offer of Proof” said that to fly in subsidised voters as per the Ansett flights was illegal under Cook Islands law and so Finbar Kenny had participated in a fraudulent scheme.
But once again this is not true.
It was not illegal to provide voters with transport to the polling booth, by whatever means, provided there was no inducement or bribery on the part of those providing the transport. Standing on its own, to provide air transport for electors from New Zealand to the Cook Islands by way of Ansett Airlines (for the Cook Islands Party) or by Air Nauru (for the Democratic Party) to vote in a General Election…was not an offence.
There are at least 20 “Errors of Fact” included in the “Offer of Proof”.
Some are of major significance while others are of minor importance. The bottom line is that this document and that of the charge against Finbar Kenny, in all aspects of major relevance, simply does not stack-up with the facts.
[edit] COOK ISLANDS OFFICIALS... "CORRUPT INTENT”
The United States officials got it wrong.
But in all due respect, they made an “honest mistake”.
The Cook Islands Government officials also got it wrong in terms of the information they provided to the U.S. Justice Department. But they got it wrong with deliberate deception and hood-winked those officials to manipulate the United States Judicial system. This was to ensure there was a conviction against Finbar Kenny which could be used later to secure a conviction against Albert Henry in the Cook Islands.
Once Finbar Kenny became aware that he was going to be charged through his company, “Kenny International Corporation”, with an offence under the Foreign Corrupt Practices Act 1977, his lawyers entered into a “Plea Agreement” with officials of the Justice Department.
In this way, Kenny would later enter a “guilty” plea in a Court of Law, with his penalties and punishment having already been agreed upon prior to his admission of Guilt.
Under the “Plea Agreement” negotiated in the United States, Kenny pleaded “Guilty” to a breach under Section 104 (a) of the Foreign Corrupt Practices Act 1977 and: 1. was fined $50,000 in the District Court for the District of Columbia, Washington. 2. agreed to travel to Rarotonga and plead “guilty” to conspiracy charges to defraud the Cook Islands Government, and 3. that Kenny instruct that the Cook Islands Development Company would also plead “guilty” to the same conspiracy charge. This meant that the Managing Director of this company, Jim Little, would also have to plead “guilty” to the same offence as well. What else could he do? The man had no choice.
These “guilty” pleas subsequently happened at Rarotonga on 11 August 1979.
The end result was that Albert Henry was “trapped” and had no option but to change his plea to that of Guilty” in regard to a charge of Conspiring to defraud the Cook Islands Government.
All what had happened in the United States was done behind Albert’s back and without his knowledge. Had Albert Henry known the circumstances of Kenny’s conviction in the United States, then he most certainly would not have changed his plea to that of “guilty”.
He would have fought on pleading his innocence. Who knows what would have happened?
[edit] WHY DID FINBAR KENNY "CAVE-IN"?
Once Finbar Kenny and his lawyers became aware that the U.S. Justice Department was going to prosecute him for a possible breach of the Foreign Corrupt Practices Act 1977, everything in the Cook Islands became irrelevant to Kenny.
Albert Henry and the Cook Islands Party became irrelevant as well.
But everything in the United States was in “damage control” to minimise any possible harm to Finbar Kenny and his international business interests.
It was the view of Kenny’s lawyers, that if a prosecution went to trial, he would be acquitted. Not only was the Foreign Corrupt Practices Act 1977 considered by many corporate lawyers to be “unconstitutional”, but it was also their view that the motive for “corrupt intent” was wrong, just as much of what had been included in the “Offer of Proof” was wrong.
However, if Finbar Kenny was to contest the charge against “Kenny International Corporation”, then the Justice Department would undertake a full investigation into his international banking network in search of evidence to show that the money given to Albert Henry had originated from Kenny International as first alleged.
Such an investigation would mean that all of Kenny’s international banking network would come under review by the Justice Department and who knows what they might find?
For various reasons, including that of confidentiality and commercial sensitiveness, Finbar Kenny simply could not afford to have Government investigators going through the books of his international business affairs. No international corporation would want such an audit to take place and Finbar Kenny was no exception.
So in the end Finbar Kenny and his lawyers concluded that it was in Kenny’s best interests to accept the charge as laid under the Foreign Corrupt Practices Act 1977, negotiate the best possible “Plea Agreement” and therefore do whatever was necessary in order to protect the confidentiality of Finbar Kenny and his international business interests.
And so Finbar Kenny “caved-in” because he had too much to lose if he did not.
Finbar Kenny “threw in the towel” simply because he could not “afford” to contest this case in court.
Part of that “cave-in” price was to travel to Rarotonga and plead “Guilty” to conspiracy charges, and to also instruct the Cook Islands Development Company to plead “Guilty” whereby forcing its Managing Director, Jim Little to plead “Guilty” to the same criminal charge as well.
With three conspiracy convictions in the Cook Islands, orchestrated through the District Court, for the District of Columbia, Albert Henry therefore had no choice but to plead “Guilty” as well.
Finbar Kenny “threw in the towel”…but it was Albert Henry who was then left – “hung out to dry”.
[edit] THE U.S. CONVICTION OF KENNY INTERNATIONAL CORPORATION
At the end of the day…Finbar Kenny ended “tripping himself up” – and “falling into a hole”.
To begin with, he was genuine in his desire to help Albert Henry and the Cook Islands Party win the 1978 Cook Islands General Election. He had no “corrupt motive” when doing this. There was no additional “money” in it for him should the Cook Islands Party win the election. He had nothing more to gain.
To Finbar Kenny, “money” was not an issue…and “money” was not a problem.
Finbar Kenny liked Albert Henry… there was no secret about that. But he did not like the Democratic Party]and in particular, its leadership and senior officials. So under the circumstances, Finbar Kenny was only too pleased to provide Albert Henry with funds to help he and the Cook Islands Party win the 1978 General Election.
[edit] Question : So where was the “corrupt intent” on the part of Finbar Kenny?
It has already been established (beyond doubt), that the “corrupt motive” used to charge Finbar Kenny by way of Kenny International in the United States, under the Foreign Corrupt Practices Act 1977, is factually wrong.
The reason given was that Finbar Kenny wanted Albert Henry and the Cook Islands Party to win the General Election so that his Stamp Distribution Agreement would be renewed during the next term of Government. The next election was due in March 1982 at the latest. However, the Stamp Distribution Agreement did not come up for review until six months later in September 1982. Therefore the charge against Finbar Kenny cannot stand on its own “two legs”. It is factually incorrect.
So the question is asked once again. What was the real “corrupt intent” on the part of Finbar Kenny? There should be a “corrupt motive” somewhere? What was the motive for Kenny to give Albert Henry more than $355,000? It was of course to stop the Democratic Party winning the General Election. That was the reason Finbar Kenny gave Albert Henry the money. So where can one find a “corrupt intent”… or a “corrupt motive” in that?
Unless a valid “corrupt intent” can be found, to replace the “factually wrong” original statement in the charge against “Kenny International Corporation”, then the conviction against Kenny International in the United States cannot be upheld.
The whole “spirit” of the Foreign Corrupt Practices Act 1977, was to prevent United States citizens financing foreign politicians and foreign political parties with “bribes” and political contributions in order to obtain valuable considerations or financial benefits at a later time.
That is what happened in regard to “Lockheed”, where that company advanced funds to foreign politicians in order to secure future Government orders and contracts.
But what if a United States citizen, or a U.S. Corporation, gave money, or a political donation, to a foreign politician with no “corrupt motive” and certainly no “corrupt intent” in mind?
Domestically in the United States, it happens all the time. Companies and individuals give large political donations all over the land. These donations are not then followed up by scrutiny as to a “corrupt intent” on the part of the donor.
So in this case, if Finbar Kenny was found to have made a donation with a similar perspective to that which prevailed in the United States, to Albert Henry, without “corrupt intent” and for no financial gain in the future…then where does that scenario place Finbar Kenny in relation to the Foreign Corrupt Practices Act 1977?
For a United States citizen to give a foreign politician, or a foreign political party, a donation of money “unconditionally” and without “corrupt intent”, is not a breach of the Foreign Corrupt Practices Act 1977.
Provisions of the Act are very clear. In order to breach this Act, evidence must show that money was given by a United States citizen to induce, influence or bribe a foreign politician or political party, to act or react at some future time as a result of the money first being given.
Section 104. (a) (2), is as follows : …It shall be unlawful for any domestic concern…the giving of anything of value to – (2) “any foreign political party or official thereof or any candidate for foreign political office for the purposes of – (A) influencing any act or decision of such party, official, or candidate in its or his official capacity, including a decision to fail to perform its or his official functions; or (B) inducing such party, official or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to any person etc.
In the case of Finbar Kenny, he was not attempting to do any of the above by giving money to Albert Henry. He was not attempting to influence, induce, bribe or purchase a future consideration from a Cook Islands Party Government. That being the case, then Finbar Kenny did not breach any provisions of the Foreign Corrupt Practices Act 1977.
Unless a “corrupt intent” can be clearly identified…then Finbar Kenny is “innocent” in relation to his conviction under the Foreign Corrupt Practices Act 1977.
Had Finbar Kenny not been charged and convicted in the United States under the circumstance in which he was, then he and others would not have been convicted in the Cook Islands to Conspiracy charges.
That being the case, Albert Henry would not have pleaded "guilty" in the manner that he did.
[edit] IT STARTED WITH A "TIP-OFF”... THAT EVENTUALLY LED TO A "TRIP-UP"
Finbar Kenny began “tripping” himself up after Elliott Khan, the Cook Islands Superintendent of Police, called at the United States Consul Office in Auckland in May 1978, seeking information in regard to the Foreign Corrupt Practices Act 1977.
He suggested that Finbar Kenny may have breached this Act. Once that information had been reported to Washington, then Department of Justice officials began an investigation to find out if there was any basis to this suggestion.
In reality, Finbar Kenny had nothing to fear. While he did give funds to Albert Henry, he had done so without a “corrupt intent”. Those funds were not to induce any future actions, either personally or by way of a future Cook Islands Party Government because Finbar Kenny was “quite happy” with “all that he had”.
But what Finbar Kenny did do was to “over-react” in the belief that he had breached the Foreign Corrupt Practices Act 1977. So Finbar Kenny was “half-right”. But he was also “half-wrong”. To breach this Act, Finbar Kenny had to have given money to Albert Henry, which he had done. But he had to have given that money with a “corrupt intent”, which Finbar Kenny had clearly not done.
However, in the belief that he had breached this Act in all aspects of wrong-doing and was about to be exposed, Finbar Kenny and his Agents began putting in place various documents to try and convince the Justice Department Officials that the money given to Albert Henry was nothing more than a normal business transaction being advances of revenue that would be due to Government later in the year.
As it happened, the more these various letters proclaimed Finbar Kenny’s innocence under the Foreign Corrupt Practices Act 1977… the deeper the “hole he dug himself into”.
The two letters of 24 February and 13 March 1978, that were written and signed after the General Election had concluded, ended up “hanging” Finbar Kenny…rather than “saving him”.
When placed in the broad context of what Albert Henry did with the money, it reflected badly on Finbar Kenny in the United States. It showed that he had apparently advanced Cook Islands Government funds to a foreign politician, so that foreign politician, being Albert Henry, could then corruptly defraud, not only his own Government, but also the Electoral system of the Cook Islands by financing the alleged “bribes” of Cook Islands Party fly-in voters in order to win the General Election.
Under this scenario, one can easily conclude that Finbar Kenny did not receive much sympathy from officials within the Justice Department of the United States.
Two other letters from the Philatelic Bureau of 6 and 16 June 1978 to the Cook Islands Government and a telex from Kenny to the Electoral Court Hearings in June 1978 saying that the advances he had given was "Government money", only dug Finbar Kenny deeper into “a hole” in the United States. It certainly did not help him get out of it as he and his agents thought would be the case.
In addition to that, information supplied to the Justice Department officials by Elliott Khan and company, for inclusion in the “Offer of Proof” appeared to confirm that Finbar Kenny was involved with corruption in the Cook Islands.
Of course that document is littered with inaccuracies and so is more “fiction than fact”, but the true situation in the Cook Islands was not known to the United States authorities at the time. They believed all of what Elliott Khan and Company had “fed them” as being “factual evidence”. The most incriminating evidence, as far as Finbar Kenny was concerned, was the two letters of 24 February and 13 March 1978 which clearly connected Finbar Kenny to a corrupt scheme to defraud the Cook Islands Government by advancing funds to Albert Henry for domestic political purposes.
The more Finbar Kenny tried to clear himself…the more he found himself – falling deeper into a “hole”.
Such was the secrecy of Kenny's convictions through Kenny International in the United States, that it was not until early 1980, some six months after the various convictions in the Cook Islands, that some documents “fell off the back of a truck” at Albert Henry’s doorstep advising him as to what had happened to Finbar Kenny in the United States.
These explained why Finbar Kenny had come to Rarotonga and unexpectedly pleaded “guilty” to conspiracy charges in the manner that he did.
However, before Albert Henry was able to mobilise his defence and try to have his criminal convictions reheard in another Court, he unexpectedly died a few months later on 1 January 1981… and therefore any chance he had to clear his name died as well.
[edit] TWO MEN CONVICTED THE “OPPOSITE” TO THEIR ORIGINAL INTENT
The criminal convictions against Albert Henry, Finbar Kenny, the Cook Islands Development Company and Jim Little to “Conspire to defraud the Cook Islands Government” were all wrong.
The original agreement between Albert Henry and Finbar Kenny, as concluded with a hand-shake at Honolulu, Hawaii on Saturday 18 February 1978, was for Kenny to finance the Ansett flights from his own resources.
There was no intent from either party that money used would later be deducted from future Philatelic Bureau revenue that would be due to Government for 1978.
Only after the United States Justice Department had been “tipped-off” by Elliott Khan in May 1978, did Finbar Kenny “shift the goal-posts” by having letters back-dated in an effort to save himself from prosecution under the Foreign Corrupt Practices Act 1977.
But in the end Finbar Kenny himself was “trapped” in the United States. He had no choice but to “cave in” in the manner that he did. This later resulted in both he and Albert Henry being subsequently convicted of a conspiracy charge to defraud the Cook Islands Government.
So both men were convicted for the “opposite” of what they had agreed to, and shook hands upon, at the conclusion of their meeting at Honolulu, Hawaii on Saturday 18 February 1978.
…both men therefore suffered – a gross miscarriage of Justice.
Following Albert Henry’s criminal convictions in 1979, the then Democratic Party Government recommended (more likely demanded) that Albert Henry be stripped of his Knighthood.
He subsequently was.
