SII Focus 6th September 2018

Former Athletics Kenya officials cleared of extorting athletes

Former Athletics Kenya officials David Okeyo and Isaac Mwangi have today been cleared of charges that they extorted money from six athletes in return for covering up positive doping tests by the Ethics Board of the International Association of Athletics Federations (IAAF). The IAAF Ethics Board Panel found that the charges against Okeyo and Mwangi could not be proved beyond a reasonable doubt, and therefore no breach of the IAAF Ethics Code had been established. 

The IAAF Panel also found that evidence suggesting documents had been faked, witnesses procured, and athletes pressurised in order to provide the defendants with an alibi, could not be proven. In its concluding remarks, the panel said that it had been ‘perturbed’ by some of the evidence outlined in the case. 

‘It affirms that it has found that the case against the Defendants has not been established beyond a reasonable doubt, but it considers that the facts on the record before it give rise to concerns that it considers both the IAAF and its member federations should consider and address’, reads the Decision (PDF below). ‘The Panel’s concerns arise from two issues that appear from the record before it as well as from the experience of two members of the Panel in sports administration over many years. The first is that given the power and authority of national athletics officials over athletes, there may be a risk that unscrupulous officials will seek to take improper advantage of athletes. The second is that should this happen, it is difficult for athletes to seek to vindicate their rights because often athletes are persons of limited or moderate means and often they are considerably younger and less experienced than sports administrators.’

Charges and background

The charges against Okeyo, a former Athletics Kenya Vice President and IAAF Council member, related to four athletes: Ronald Kipchumba , Peris Jepkorir, Viola Kimetto, and Wilson Erupe. The charges against Mwangi, a former CEO of Athletics Kenya, related to Joy Sakari, Francesca Koki, Peris Jepkorir, and Wilson Erupe. 

The charges date back to a 2012 documentary produced for German television station ARD by Hajo Seppelt and his team. After he was issued with a two year ban in 2012 following a positive test for Erythropoietin (EPO), Ronald Kipchumba was approached by journalists – including the ARD team – to tell his story. Some of the allegations were built upon in a 2015 documentary, ‘Poisoned Spikes’ (video below).

Kipchumba allegations

Kipchumba alleged that Okeyo had asked him for money to reduce his ban from four to two years, an allegation that Okeyo denies. Several other athletes told journalists that Athletics Kenya officials had extorted money from them in return for their bans for use of Prohibited Substances to be reduced. 

The IAAF Ethics Board decision reveals that journalists for ARD were assisted by Elias Kiptum Miandi, a Kenyan athlete. Kipchumba alleges that Miandi approached him in April 2017 asking him to sign a statement in English, which he did. 

In November 2017, Kipchumba states that he was told that the IAAF Ethics Board would like to speak to him. He alleged that Miandi phoned him and told him not to speak to the Ethics Board, as the statement he had signed was an affidavit withdrawing his allegations against Okeyo. Kipchumba said he had not read the statement as his English is poor, and signed it as he had trusted Miandi.

Miandi argued he did not contact Kipchumba requesting him to sign the statement. He argued that the allegations of a doping cover up were a creation of the journalists, and he held a meeting with Kiplagat and Okeyo where a statement was made withdrawing the allegations. Okeyo said that such a meeting had taken place, despite not mentioning it in his defence. However, the IAAF Ethics Board Panel found Miandi’s evidence to be ‘so improbable as to be implausible’.

‘After a consideration of all these circumstances, the Panel does not accept that Mr Kiptum Maindi decided of his own accord in April 2017 to approach lawyers to assist him to prepare a written statement confessing that he had been part of a group of athletes who had sought untruthfully to accuse Mr Okeyo of extortion’, reads the Decision. ‘The Panel also does not accept that it was a mere coincidence that the lawyers he approached happened to be the very lawyers representing Mr Okeyo in these disciplinary proceedings who at the time would have been preparing Mr Okeyo’s defence. Similarly, the Panel does not accept Mr Kiptum Maindi’s denial that he approached Mr Kipchumba to sign the disputed statement shortly after he had signed his own.’

Kisorio allegations

Matthew Kisorio alleged that although Okeyo had never directly asked him for money in connection with his 2012 AAF, he “got the clear sense from what he was saying that he was looking for a payment”. Under cross examination, he told the Prosecutor that Okeyo had asked about how much money he had been paid in some of the races he had run. 

The IAAF Ethics Board Panel found that Kisorio ‘appeared uncertain and hesitant and unwilling to say that he had formed the view during his meetings with Mr Okeyo that Mr Okeyo wanted to ask him for money, despite being repeatedly asked by the Prosecutor. The Panel accepts that Mr Kisorio was uncomfortable in testifying against Mr Okeyo in his presence. The Panel notes too that, according to the Prosecutor, Mr Okeyo was laughing during Mr Kisorio’s testimony.’ The Panel found that Kisorio’s witness statement, without more, was not enough to establish that Okeyo sought to extort money from him in return for a reduction in his suspension.

Jeruto allegations

Agatha Jeruto Kimaswai alleged that after a April 2015 AAF, she was told by an intermediary that Okeyo would give her a reduced sanction if she paid KES5 million (€43,000). She then travelled from her home in Eldoret to Nairobi (over 300km) to meet Okeyo, who said that he would help her, but when she asked how much money he wanted, he did not reply. She alleged that the intermediary had a conversation with Okeyo after the meeting that she did not overhear.

She alleged that after the meeting on the way back to Eldoret, the intermediary said that Okeyo wanted KES5 million in cash. She decided not to pay the money, but alleges that she received several calls from the intermediary asking if she would pay.

At a September 2015 meeting with Okeyo, she alleges she was told she would be banned for four years. ‘She recorded that although Mr Okeyo did not mention money, it was clear to her that Mr Okeyo was telling her that she was being given a four-year ban because she had refused to pay the KES 5,000,000’, reads the Decision. After that meeting, she decided to contact the IAAF.

‘The Panel notes that on Ms Jeruto’s version the only person who actually heard Mr Okeyo make a demand for payment was the intermediary’, reads the Decision. ‘The Panel has not heard the evidence of the intermediary himself. Where such evidence is tendered only by way of hearsay, the possibility to hear and rebut such evidence is compromised. In the view of the Panel, it is for this reason that Ms Jeruto’s account of what she heard the intermediary say could not be given decisive weight. Accordingly, the Panel concludes that, in the absence of any evidence that directly confirms Mr Okeyo’s demand of extortion, it cannot find that it has been established beyond a reasonable doubt that Mr Okeyo sought to extort money from Ms Jeruto in return for a promised reduction in her period of suspension.’

Sakari and Manunga allegations

Both Joy Sakari and Koki Manunga were sanctioned with four year bans after being sent home from the Beijing 2015 IAAF World Championships, due to positive tests for prohibited substances. In a January 2018 statement, Manunga alleged that Mwangi had stated that if the athletes gave him KES2.5 million each (€21,300), they would receive a reduced sanction.

Mwangi denied that he had met the athletes on 16 October 2015, as they alleged, and denied that he had asked for money in return for reducing their suspensions. However, the IAAF Panel found inconsistencies in the evidence put forward by three Athletics Kenya employees that alleged he was elsewhere. 

The Panel found that an entry in Mwangi’s electronic diary for 16 October 2015 had been made four months later, in February 2016. ‘The Panel concludes that this antedated entry may well have been entered in order to bolster Mr Mwangi’s assertion that he had a full diary that day and could not have met with Ms Sakari and Ms Koki Manunga’, reads the decision. 

A second document purporting to be the reasons behind the doping decision promulgated in relation to Sakari and Manunga was found to be fake. Mwangi denied an allegation that he had faked the document in order to bolster his defence. The Panel said that evidence suggested that the doping decision document was not authentic, but added that who manufactured the document and why was less clear.

‘The Prosecutor argues that the three witnesses led on behalf of Mr Mwangi demonstrated a concerted, but unsuccessful, attempt to provide him with an alibi for 16 October 2015’, stated the IAAF Panel. ‘The Panel cannot conclude on the record before it that the version presented by Ms Sakari and Ms Koki Manunga was untrue nor can it conclude that Mr Mwangi was lying when he denied their allegations. The Panel is thus left in the uncomfortable position of having heard contradictory evidence from witnesses that, in the main, it has found to be credible. It is precisely in such circumstances that the burden of proof determines the result of a case. In this case, the Prosecution bears the burden of proof, and the Panel accordingly concludes that the case against Mr Mwangi has not been made out.’

The fish rots from the head down

In doping cases, it is up to the athlete to establish how a prohibited substance turned up in their sample. As many athletes have found to their cost, if they cannot provide evidence outlining how their adverse analytical finding (AAF) occurred, they can be sanctioned with a four year ban.

As the IAAF Ethics Board Panel decision outlines, the standard of proof in sports corruption cases is somewhat higher. ‘The Panel considers that the charges in this case, which involve blackmail and extortion, are of the most serious kind for they constitute not only serious criminal conduct, but also the abuse of authority’, it reads. ‘The Panel accordingly considers that the appropriate standard of proof is proof beyond a reasonable doubt’.

The IAAF has failed to meet that standard of proof, but its decision raises troubling questions about the conduct of senior IAAF officials. In January 2016, the Independent Commission of the World Anti-Doping Agency (WADA) found that senior IAAF staff were aware of corruption involving delaying the announcement of positive doping tests. It found that senior IAAF staff had been involved in extorting money from senior athletes in the case of Russia. 

‘The corruption that occurred within the IAAF was not at the level of some foreign currency trader in a bank carrying out unauthorized transactions, without the knowledge or permission of the responsible bank officers’, read its 89-page report (PDF below). ‘Here, it started with the President of the organization. It involved the Treasurer of the organization. It involved the personal counsel of the President, acting on instructions of the President. It involved two of the sons of the President. It involved the director of the Medical and Anti-Doping department of the IAAF […] The IAAF allowed the conduct to occur and must accept its responsibility.’

In 2012, from when the allegations that Okeyo and Mwangi extorted money from Kenyan athletes date, Lamine Diack was President of the IAAF. An IAAF investigation into Isaiah Kiplagat, the former President of Athletics Kenya who was a Council member in 2012, was dropped due to his 2016 death. Diack, the first President of the IAAF, was arrested on corruption charges by French police in November 2015. His son, Papa Massata Diack, was banned for life by the IAAF in 2016 due to corruption charges.

Isaiah Kiplagat had worked at Athletics Kenya for 40 years, becoming Chairman of Kenya Amateur Athletics Association – as it was then known – in 1992. He was appointed to the IAAF Council in 1999, and was provisionally suspended by the IAAF in November 2015, due to allegations that he had subverted the doping control process in Kenya, and had diverted sponsorship money paid by Nike. The IAAF separately found that he had accepted two cars from Qatar as a gift, in connection with its failed bid to host the 2017 IAAF World Championships.

The IAAF Ethics Board recently found that Okeyo, appointed as an IAAF Council member in 2015, diverted sponsorship payments made by Nike to Athletics Kenya for his own personal benefit, and issued him with a life ban. In November last year, the IAAF Ethics Board confirmed that it is still investigating Major Michael Rotich, former Manager of Kenya’s Rio 2016 Track and Field delegation, over allegations that he provided athletes with advance notice of when doping tests would take place. Rotich has also been charged with conspiracy to promote the use of prohibited substances in sport.

It was also alleged that that official Kenyan Rio 2016 kit was sold to members of the public; that kit destined for Rio 2016 athletes remained at the NOCK offices in Kenya; and that unfit accommodation was obtained for the Kenyan team after NOCK failed to secure a flight until after the Olympic Village had closed. Chef de Mission Stephen arap Soi, National Olympic Committee of Kenya (NOCK) Secretary General F. K. Paul and Assistant Secretary James Chacha were arrested in Nairobi after arriving home from Rio.

Current IAAF President Sebastian Coe had sat on the same IAAF Council as Kiplagat as its Vice President since 2007. Nick Davies, formerly Director of Coe’s Office, was banned for life in February 2017 over a plot to delay the announcement of Russian doping positives until after the Moscow 2013 IAAF World Championships, whilst he was the IAAF’s Director of Communications. Coe accepted advice from Papa Diack about his successful election as IAAF President in 2015.

The IAAF hasn’t managed to prove that Okeyo and Mwangi extorted money from Kenyan athletes, but the above explains why the IAAF Ethics Board Panel went to pains to emphasise its concerns that athletics officials could take advantage of athletes. The IAAF and WADA have previously found that athletics officials have been involved in similar cases of corruption. Were all of the above unaware of the corruption that was allegedly going on in Kenya? 

The athletes who allege that Okeyo and Mwangi attempted to extort money from them might today be wondering about the equity of sports justice. They must prove that they are innocent in order to escape a full doping sanction, yet officials do not have to prove that they are innocent of corrupting the anti-doping process in order to entirely escape sanction – they must be proven guilty beyond any reasonable doubt. The fish rots from the head down, so the saying goes. 

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