Me ruru koe i te pu rakau, matakite eaa te ka pururu mai, if you shake the tree, be careful what falls out, writes Thomas Tarurongo Wynne.

Firstly, can I be clear, Albert Henry was convicted because he was guilty as charged. This column is not to exonerate or to commute what was wrong, rather it is to shake the tree and see what else we may have considered in the context of this case.

So, who was Finbar Kenny, the man that would turn State witness on Albert Henry and was critical to the legal case mounted against him. Kenny, an American who had already built in the country, that would become the United Arab Emirates, a stamp empire, would head the Cook Islands Philatelic Bureau in 1965. He was the sole distributor of Cook Islands stamps in agreement with the Cook Islands government.

For this service and opportunity, he would keep 50 per cent of what he sold to stamp collectors outside the Cook Islands. In 1978, his stamp sales totaled $1.5 million, and the Cook Islands’ government share of that amounted to 20 per cent of its total revenues.

Kenny International Corp was a corporation organised and existing under the laws of the State of New York. The company was run by Finbar B. Kenny who was Chairman of the Board, President, and the majority shareholder. A Justice Department unit set up to prosecute American corporations that made payoffs to foreign officials (after Watergate) won its first court victory in 1979, with a guilty plea by Kenny International Corp and its sole director Finbar Kenny.

On August 2, 1979, Kenny International pleaded guilty to violating the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977(FCPA). At the same time, without admitting or denying the Department of Justice’s allegations, Kenny International consented to a final judgment of permanent injunction from future violations of the FCPA and a $50,000 fine. Kenny also flew back to the Cook Islands to testify against Henry and pleaded guilty in the High Court of Cook Islands, and agreed to pay NZ$337,000 in restitution.

A far cry and protection from further prosecution from the team of Number 2 Attorney in New York at the time, Carl Rauh, Peter B. Clark, Richard S. Shine and George J. Medelson, that came after Kenny and the up to $1 million he could have been fined under U.S. law.

Attorney Sheldon H. Elsen said in Kenny’s defense, this was a technical violation of the Foreign Corrupt Practices Act of 1977, and that Kenny received no personal benefit from the transaction, and that the funds he paid represented an expedited payment legitimately due to the country. So, the question needs to be asked, whose money was it that Kenney used. His own money, or the government of the Cook Islands. Because at the time it was supposedly an advance, but it wasn’t an advance that Kenney was tried for, it was for using his own money to fund a foreign country’s election. He could not have been tried or convicted for using Cook Islands government money to fund a Cook Islands political party campaign – only if it was US money from a US citizen used in a foreign country. Something this new law was trying to stop and prosecute and something Henry contested – his position was Kenney had given him his own money.

Also used as a defense was that Kenney, the shrewd businessman, was held to ransom by the persuasion and compliance to Henry, and that “It would have been extremely difficult for the company or any other servant of a foreign government not to comply with a request from the head of that government for advance payment of funds to which it is rightfully entitled, or to control the use of those funds subsequent to transfer, no matter what his suspicions,” said Elsen, except of course in the US this was illegal.

In the end, Kenny escaped further penalties, and Henry, by the decision of Justice Gaven Donne, was ousted from office, based on testimony from Kenny that Henry had asked him to divert $337,000 of his own money and potential earnings from the Stamp bureau to charter six Ansett jets to fly in his supporters to the polls from New Zealand to vote, accompanied by Democratic Party voters who flew in on a chartered Air Nauru 727, following on from Democratic Party fly-in voters in 1974.

– Part three next week