This means the duo will now have to defend themselves over the charges levelled against them. Thirty-six witnesses testified in the case.
The court however acquitted two others who had been charged alongside Oswago. The magistrate said no case has been made against Edward Kenga Karisa and Willy Gachanja Kamanga.
In 2013, Oswago and Shollei were arraigned in court charged with failing to comply with the law relating to procurement.
The two allegedly failed to ensure the changes made to the contract awarded to Face Technologies Limited by the IEBC for the supply of Electronic Voter Identification in Tender No. IEBC14/2011-2012 were approved by the IEBC tender committee.
On a different count, they were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1.39 billion for the supply of EVIDs without ascertaining that devices supplied were inspected, accepted and met the technical specifications in the contract.
The articles quoted below indicate that the Ethics and Anti-Corruption Commission was already “on the case” having received information before the election about potential procurement fraud and started investigating even before the Supreme Court ordered such an investigation in its ruling upholding the IEBC’s award of the winner’s certificate to Kenyatta and Ruto.
Electoral commission officials and vendors of electronic systems used in the March 4 General Election may face criminal prosecution after the Supreme Court recommended they be investigated over the failure of the gadgets.
In its full judgment of presidential election petitions released Tuesday the six judges said there were squabbles among Independent Electoral and Boundaries Commission (IEBC) officials over the procurement leading to the failure of the electronic voter identification devices (EVID) and Result Transmission System (RTS).
“We recommend that this matter be entrusted to the relevant State agency for further investigation and possible prosecution of suspects,” the six judges led by Chief Justice Willy Mutunga, the Supreme Court President, said.
Failure of the devices was at the heart of the petitions challenging the election of Uhuru Kenyatta as Kenya’s fourth president filed by Raila Odinga, who emerged second in the election, and Africa Centre for Open Governance (Africog).
. . . .
The judges said the electronic system procurement was marked by competing interests some involving impropriety or even criminality.
“Different reasons explain this failure but, by the depositions of Dismus Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process,” said the judges.
The court said enough evidence was produced to show that EVID and RTS stalled and crashed.
. . . .
With the recommendation of investigation and prosecution which was bolded on page 113 page of the judgment, the Supreme Court has set the stage for the Director of Public Prosecution and the police department to swing into action.
Mr Ongo’ndi, Head of IT at the electoral agency, had cautioned the electoral commission against buying the EVIDs, saying they required more time and a parallel technology to function optimally.
In an internal memo to Deputy Commission Secretary for support services Wilson Shollei and copied to IEBC CEO James Oswago, Mr Ong’ondi said the kits tender should not be awarded because of the risk that the gadgets.
The contract was awarded to Face Technologies at a cost of Sh1.3 billion, according to Mr Oswago, who said the devices failed because of an operational challenge.
“We have nothing to hide, we are ready for any investigations and the procurement being subjected to public scrutiny,” Mr Oswago said Tuesday.
The poll books were meant to identify a voter before one could cast a ballot. They were also to verify that one was a registered voter and account for all those who voted, eliminating the risk of multiple voting, ghost voters and ballot stuffing.
Mr Oswago said the commission abandoned the transmission software developed by Next Technologies during the referendum and by elections to develop its own for the General Election at a cost of Sh40 million. That would put the blame on the transmission system failure at the door of IEBC’s IT department which is headed by Mr Ong’ondi.
The failed software was developed in partnership with International Foundation for electoral System (IFES), which also bought the servers. The mobile phones were supplied bySafaricom.
The procurement of electronic systems was marked by controversy from the word go leading to the cancellation of the tenders for the Biometric Voter Register (BVR).
Former President Mwai Kibaki and former Prime Minister intervened and the kits were eventually delivered through a Canadian government loan of Sh6 billion.
. . . .
The Elections Act sets out offences that can be committed by commission officials including “without reasonable cause does or omits to do anything in breach of his official duty”.
Such an offence attracts a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both upon conviction.
A day later, Mr Tobiko [Public Prosecution Keriako Tobiko] sent a letter to EACC instructing it to start investigations, stating the directive arose from Justice Willy Mutunga court’s suggestion.
Evidence supplied by the electoral commission showed that the failure of the Electronic Voter Identification and the Results Transmission Systems mainly arose from misunderstandings and squabbles within the commission during the procurement.
An internal memo by the commission’s head of IT warned of the risks posed by the kits.
The Treasury was forced to divert cash from other government operations to advance payment for the BVR kits and then obtain cash from the loan to replenish the IEBC account ahead of the General Election.
Failure to each pact
“The Treasury has fully done its part and it is now up to IEBC to do their work,” the brief said.
The search for cash came after failure to reach an agreement by October 15 as stipulated in the contract with the supplier of the BVR kits, Morpho Canada. According to the Treasury, the government does not have a contract with French firm Safran Morpho as such but with the Canadian government that sought and obtained the BVR supplier, Morpho Canada.
Safran Morpho of France happens to be the subsidiary of Morpho Canada, which was contracted by the Canadian government.
Safran Morpho only made and supplied the equipment from France as a subsidiary of Morpho Canada, which is the actual contracting party in the deal with the governments of Kenya and Canada.
The Ethics and Anti-Corruption Commission has said preliminary investigations into the procurement process undertaken by the IEBC began before the March 4 general elections.
EACC Chief Executive Officer Halakhe Waqo has said the investigations were prompted by information gathered by the commission to the effect that the procurement carried out by the IEBC was not transparent and may have been flawed.
Excerpts from the unredacted portions of the Quarterly Reports submitted by CEPPS, the Coalition for Political Party and Process Strengthening, to USAID, released to me last month per my 2015 FOIA request:
The overall goal of this program [USAID Kenya Election and Political Process Strengthening or “KEPPS”] is to improve Kenya’s ability to hold free, fair and peaceful elections through support of the new electoral commission, political parties, civil society and media.
The reports show that key Objectives included to “Strengthen Election Management Body Capacity,” “Enhance Functionality of the Electronic Results Transmission System,” “Further the Transparency and Effectiveness of the Voter Registration Process,” and “Support Credible and Sustainable Monitoring and Observation Efforts”. Vast amounts of the material is redacted on the assertion of alleged FOIA exemption for confidential commercial information submitted by a private person. Redaction is so aggressive as to include in some instances blocking the entire list of Objectives, although the specific items listed above show up elsewhere.
The USAID program was originally funded for $18.5M from the Second Quarter of 2011 through the Second Quarter of 2014 (with another year and roughly $5M added through amendments). The original funding was split among the Consortium for Election and Political Process Strengthening parties: IFES $6M; IRI $1.5M; NDI $11M.
*Assisting the IEBC in procurement of the Electronic Poll Books, specifically technical evaluation of the offers (This was planned for the current quarter but was delayed by IEBC).
*Guiding IEBC in development of procedures and training programs for voter registration workers (Also delayed by IEBC due to delays in procurement of BVR equipment).
*Providing a consultant to serve as assistant to the Chairman of IEBC during the absence of his Personal Assistant who has accepted a fellowship to continue his studies.
The tension among the Objectives involving imbedded support to the IEBC and support for credible monitoring and observation was apparent very early on in the Quarterly Reports.
Planning for the results transmission was derailed to a great extent by the repeated cycles of crisis with regard to the BVR procurement. Meetings scheduled with the IEBC to plan for a system were repeatedly cancelled as a fresh new crisis seemed to occur weekly and even daily.
The risk of failure of the electronic poll books procurement jeopardized the planned use of the poll books to enter results from each polling station, and may necessitate a return to mobile phones. In spite of the increased complexity of conducting elections with six [REDACTED Section].
Objective 5 [of USAID program]: Enhance the functionality of the electronic Results Transmission System.
* Specifications have been developed for using mobile phone handsets as a contingency in case the procurement for electronic poll books fails.
Voter registration timelines announced by the IEBC lapsed repeatedly as a result of delays in the acquisition of BVR kits. Unable to settle on a vendor and a system at the end of August, the IEBC announced that it would instead revert to the manual register for the elections. However, the Cabinet exerted great pressure on the IEBC to retain the use of a BVR system and subsequently took over the tender process, negotiating directly with the Canadian Government for delivery of a BVR system …
The decision of the government to pressure IEBC to proceed with BVR, without regard for delays caused by this decision, and IEBC’s inability to resist that pressure has created a high-risk schedule with no room for slippage in planning for March 4, 2013 elections.
At the same time, IFES was working on “Restoring the eroding levels of public confidence in the integrity and competence of the IEBC” and “Ensuring an efficient and transparent vote count and results transmission system”.
But was not the public ultimately correct to have declining confidence in the integrity and competence of the IEBC, both in the lead up to the vote, and in light of the ultimate failures with both the questionably acquired Poll Books and the Results Transmission System?
Fourth Quarter of 2012:
The Results Transmission System (RTS) solution procurement process was commenced during this Quarter and an in-house RTS was developed and presented to the IEBC as a backup system [REDACTED Section].
Results Transmission: IFES has continued to collaborate closely with the IEBC in the creation of a fully working prototype of the overall Results Transmission System. IFES has also, with approval of the IEBC, agreed to procure a Results Transmission System (RTS) solution and procurement is underway.
For an idea of what was being discussed publicly in the fall of 2012 (when election was originally scheduled) see, i.e.:
Ultimately, the Results Transmission System failed in practice. While it was allegedly acquired and deployed with an expectation of reliable performance, it initially displayed unverified and uncertain information that shaped global media reporting of the expected outcome of the eventual vote totals, but was then shut down completely by IEBC Chairman Hassan on the alleged basis of failure due to system overload.
The IEBC went on to announce a final first-round win for the Uhuru Kenyatta and William Ruto ticket with 50.07 percent of the vote in spite of the lack of the electronic system specified in the Constitution and the lack of a demonstrable manual contingent system and the expelling of party agents and election observers from the national tally process, among other irregularities.
This leverage carried over into the Supreme Court as Kenyatta and Ruto and the IEBC defended the alleged 50.07% margin. IFES, according to correspondence and reporting provided at least some support services to the IEBC in litigating alongside Kenyatta and Ruto against Odinga and Musyoka as the opposition candidates and a separate election challenge from civil society. So far as I know the role of IFES in acquiring the RTS with US funds did not come up in the litigation, or in the reports of Election Observers, either those supported by CEPPS under this USAID KEPPS program or otherwise.
My comment: I have read much of the report in some detail, but still working through some sections. When Ambassador McCarter hails the report and suggests that Kenyans should not comment until they have read it, he does let us know that it is intended to be an elite consensus to be handed down into Kenya’s democratic politics such as it is.
Figures on internet penetration in Kenya are, inevitably, as inconsistent as figures on Kenya’s population. Some assert that more than 85% of Kenyans have internet access, but so much of that is strictly mobile and expensive for data that reading the full report while suspending comment is quite a big ask. The Ambassador obviously is a very quick reader based on the timing of the release and his comments to The Star.
On substance, I find Kenya’s elites to be smart, well educated and well spoken, so it is no surprise that within the details of the report I find a lot of exposition that is appealing to me. How seriously is it to be taken? One has to compare the track record of these elites to past performance, which while giving no guaranty of the future, is the most tangible thing to go on in trying to guess whether they are serious. That part does not weigh in favor of getting too excited about the document one way or the other.
As an example, look at the recent US attack on Senator Amos Wako for his alleged corruption as Kenya’s attorney general during the Moi and first and second Kibaki Administrations at the same time he was a key member of the BBI effort. So what does my government really think about the BBI process?
Beyond that, what I would need to know myself, and what I would think Kenyans would need to know is how the specific decisions reflected in the report were made. The report is very ambitions, and arguably internally contradictory, in making profound recommendations for the shape of Kenya for generations to come. How did the BBI team decide to stress on one hand the idea of going back to try a “nation building” exercise of coming up with some type of “national ethos” for Kenya,while also committing to doubling down on and even expediting the notion of regionally confederating and then federating in an East African state? Are either of these goals realistic and if both are, are they compatible?
What was the process for deciding that industrial manufacturing for a regional market was the best way to address the employment crisis? And so on.
[Update: I have completed my “close reading” of the full document. What I will add is that there are a lot of worthwhile specific items included in the recommendations toward making Kenya’s government more effective/efficient/ fair. These represent collectively a substantial amount of thought and effort and I do not take that lightly; collectively they could if fully implemented quickly accomplish very significant incremental improvements, but do not seem to me to suggest something profoundly transformational. Aside from the issues I mentioned above, the gaping hole is the failure to address at all the unfulfilled parts of Kenya’s National Accord from the 2008 “peace deal” following the stolen 2007 election, especially the truncated and “shelved” Truth, Justice and Reconciliation Commission report.]
IDEMIA f/k/a OT-Morpho before a name change (and previously Safran Morpho before the French defense conglomerate sold this division to the French technology group Oburthur Technologies in a transaction closed shortly before August 2017 Kenyan election) has been a fixture of the past two Kenyan elections.
I have written about issues involving these procurements numerous times over the years and am continuing my engagement with the USAID Freedom Of Information office in their review and processing of public information from USAID support to the Kenyan IEBC in the 2013 election, from my request in 2015. (So far they have processed and released or withheld about half of the records sent from Nairobi to Washington by early 2016. They continue to assure me that they are working away at this.)
Last July IDEMIA dismissed without explanation a defamation suit it had filed against Raila Odinga and other NASA coalition leaders in April 2018 shortly after Raila’s “handshake” with Uhuru ended high level political contention over problematic KIEMS system IDEMIA had sold the IEBC in March 2017. The court records I reviewed indicted a unilateral dismissal rather than a settlement.
The judgment of the Supreme Court in the 2013 election petitions of AfriCOG and the opposition found that there was evidence of procurement fraud with the failed technology acquisitions, and ordered an investigation, but the IEBC, Kenyan prosecutors and donors all failed on that account. OT-Morpho, n/k/a IDEMIA once again was chosen in an opaque and controversial procurement process for the bigger 2017 “integrated” system. (I was told by the USAID press office that USAID did not finance the KIEMS purchase for the IEBC for 2017.)
Members of the National Assembly voted on Wednesday to block technology firm IDEMIA Securities from doing business in Kenya for at least 10 years, citing violation of the Companies Act.
The move complicates the ongoing Huduma Namba registration, as the contract was awarded to the French firm at Sh6 billion.
. . . .
The MPs amended the report of the House Committee on Public Accounts on the audited accounts of the Independent Electoral and Boundaries Commission (IEBC), to have the technology firm held accountable for irregular payments it received during the 2017 general elections.
Kenya, after three problematic general elections (2007, 2013, 2017), might finally be showing some initial stirrings of organic action to start to address fraud within the Election Commission. The Independent Electoral and Boundaries Commission has announced today the termination of Ezra Chiloba, Chief Election Officer, after a long suspension.
The last two elections were plagued by technology problems, with the 2017 vote annulled by the Supreme Court. The donors, including USAID which directly funded failed purchases in 2013, and funded a major embedded role with the IEBC for IFES throughout these years, have remained conspicuously mute on reforms and corruption issues involving the Electoral Commissions.
In the past, after opposition protests, the Commissioners from the 2007 and 2013 elections were given lucrative buyouts to pave the way for a new slate, and impunity for bribery and procurement fraud issues was the informal consensus policy among the Kenyan politicians and the Western donors supporting the election process.
After the buyout of the Commission led by Issack Hassan which had failings in the 2013 vote, Chief Election Officer Chiloba was carried over under the new Commission on through the 2017 vote. Since 2017 we have now seen three Commissioners resign in addition to Commissioner Akombe who fled country during the tensions following the Supreme Court’s annulment of the August presidential vote. The remaining Commissioners have now acted to fire Chiloba after internal audits and a report by Kenya’s Auditor General raised “charges . . . on major procurements.”
See today’s announcement:
The next step is to release to the public the audit reports indicating “charges” and refer the matters for legal proceedings.
In the meantime, several more months have gone by without any further release from the USAID FOIA office on my 2015 request for the documents from their support of the IEBC through IFES for the 2013 vote.
With this year’s Supreme Court decision annulling the August 8 presidential vote with Paul Muite, one of Kenya’s most prominent lawyers–and sometimes “Central Province” politician and official–representing the Election Commission (IEBC) I thought it was worthwhile to highlight his pre-election integrity concerns when he was not litigating:
There is, however, nervousness about how the IEBC will fare.
Led by Ahmed Issack Hassan, the IEBC has enjoyed public confidence since August 2010 when it ran the referendum on the new constitution.
It then held several by-elections with textbook efficiency.
But troubles began last year over a tender for biometric voter registration kits.
After anomalies were exposed, the government intervened and awarded the tender to France’s Safran Morpho at almost double the stipulated cost.
The delayed voter registration was com- pressed to one month instead of three.
James Oswago, the IEBC chief executive, says it is absolutely committed to transparency: “In fact, I am not aware of any public procurement officer who has referred a controversial process to the government for arbitration. I did. You have not heard anybody going to court for corruption linked to this process.”
Unlike the old Electoral Commission of Kenya, whose top officials were in the president’s gift, the IEBC has nine one-term commissioners including Oswago, who acts as secretary to the board.
Each commissioner was selected after consultations between President Kibaki and Prime Minister Odinga, the two main rivals in the 2007 election, and then vetted by parliament.
“We have in place structures that invalidate a discretionary announcement – a rigged vote. You can accuse the commission of inefficiency or of lateness and so on, but not of rigging,” Oswago says confidently.
But Paul Muite, a lawyer who is contesting the presidency himself, does not share such certainty: “The IEBC is not inspiring confidence. I am not sure that they have the capacity or political will to conduct credible elections.
“There are integrity questions regarding some commissioners […] the composition of the commissioners was motivated not by merit but by the coalition government’s need for ethnic and regional balance.”
Similarly, a report by South Consulting, which has been monitoring the coalition government for the Panel of Eminent African Personalities led by former United Nations secretary general Kofi Annan, raised questions about the IEBC’s capacity.
It questioned its capacity to act decisively on electoral disputes and pointed to its inability to censure rogue parties and politicians during the chaotic party primaries in January.
In January, the IEBC vetted and registered eight presidential candidates, rejecting two on technical grounds.
Among those approved was Uhuru Kenyatta, although he was facing a local case challenging his candidature on integrity grounds.
The case is unlikely to be decided before the presidential elections.
It seems the IEBC did not want to prejudge it, so was happy to let the courts decide.
Pressure is certain to build on the new and inexperienced IEBC as elections approach and then again in likely second round elections.
The courts, determined to uphold their independence, will probably act as a buffer against violent street protests.
The police force, overstretched as it is and caught in a maelstrom of reform, resistance and warring political factions, may not.
Voters may find themselves caught between these two institutions●
The Kenyan Ambassador to the EU accuses the EU EOM of violating a Memorandum of Agreement with the Government of Kenya governing its observation by releasing its Final Report this week. (I have not had a response yet from a request for a copy of the MOU from the EOM or been able to otherwise locate a copy–it is likely routine.)
The report has a fair bit of information on the immediate mechanics of voting this year, while noting that few of the recommendations of the 2013 EUEOM had been met in preparation.
Of the 22 recommendations made by the 2013 EU EOM, it appears that none of the five priority recommendations have been implemented, and only two have been fully implemented (related to a unified voter register and defining the duration of the campaign). The rest have been partially implemented, albeit minimally in some cases, or not implemented at all.
I do not have any particular comment regarding the voting itself having elected not to be there myself.
While observing that the new IEBC was appointed unduly late, in a climate of mistrust, the report does not addresses the context or even mention the “Chickengate” convictions by the Courts of EU Member the UK for bribes paid for previous IIEC/IEBC procurements, or the Government of Kenya’s failure to prosecute the recipients, for example.
I will be interested to hear more on the thoughts of others who were there.
We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.
The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.
We are going to demonstrate that IEBC and the chairperson simply did not do this.
. . . .
Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.
. . . .
Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.
Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?
IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.
Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?
That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.
What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.
Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.
Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.
The Supreme Court of Kenya’s long awaited reading of its full opinion on the presidential election petition this morning squarely hammered the discrepancies between the process requirements of the law and what the evidence showed happened.
The Court found explicitly, for example, that the affidavit submitted by the IEBC asserting that all of the tally papers had security features was contradicted by the documentary evidence eventually produced by the IEBC under order of the Court in the hearing.
The Judiciary website seems to have been down from before the announcement so I will have to wait to read the opinion.
The Court made clear that there would be no basis for it to uphold a similarly compromised process in a fresh election.
The ball is squarely in the “court” of the IEBC and its advocates and funders to grapple with the “contamination” and its causes to find a solution.
(On the submission of the Preliminary Statements of Election Observation Missions as evidence to bolster the defense of the IEBC, the Court said they could not be considered as they did not go beyond looking at the voting and counting at a sample of polling stations. This is good news in correcting one of the flaws from the original 2013 presidential petition litigation.)