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.
But more telling was the Secretariat’s response to a resolution to engage USAid’s International Foundation for Electoral System (IFES) on the acquisition of the requisite Result Transmission System (RTS).
IFES, which procured the 2013 election servers, had made it known that this time it had earmarked Sh2 billion through its Kenya Electoral Assistance Programme (KEAP).
The secretariat, as in the other cases, reportedly disregarded this decision. IEBC’s lack of enthusiasm can be explained. On Jamhuri Day 2016, President Uhuru Kenyatta had, without divulging details, spoken out against what he termed foreign countries’ attempt to influence Kenya’s elections through suspicious funding.
Exactly a week later, the NGO Coordination Board, then headed by Mr Fazul Mohamed, declared IFES illegal in Kenya and asked Central Bank to freeze its bank accounts.
Instructively, the IFES funding was to be a grant. Instead, IEBC awarded Safran the Sh4.19 billion Kiems contract against a budget of Sh3.8 billion. The Auditor General would later indicate an overpayment, contrary to the law.
Intriguingly, IEBC further paid Safran for the same goods and services during the FPE. The comparative costs for the August 8, 2017 election and the subsequent poll indicate huge over-pricing for the latter, despite it being just one election against the six during the General Election.
The difference was a mere Sh1.672 billion yet the August Election involved acquisition of 45,000 KIEMS and their configuration, training and logistics while (FPE) entailed the purchase of just 15,000 KIEMS.
But more disturbing, the cost of FPE election-day support of Sh443.8 million “was almost twice that of the General Election”, that’s Sh242.5 million, according to the audit.
In defence, IEBC argued that there was an increase in Safran technical personnel, from 94 during the General Election to 292 in the FPE, a position the Auditor General found wanting. In fact, not all the technical staff were deployed during the FPE and “in any case, elections did not take place in 21 constituencies”.
Despite the inflated cost, the glitches in the General Election also littered the FPE. In fact, the October 26 Election was a replica of — if not worse — than the August 8 General Election.
However, Safran couldn’t be held liable for non-compliance, for the contract of September 28, 2017, was without guarantee of compensation in case of non-execution. This is because the firm flatly declined to provide performance security bond for the huge undertaking.
It argued that such a bond and a Letter of Credit (which it had) “serve the same purpose”.
(A bond is a specified amount of money to ensure work is performed to the contract standards. If poor, the recipient can request bond funding to be released to hire someone else to complete the work. Letter of Credit promises that payments will be made; it covers payment for a project).
Later, it emerged that Chiloba had discussed with Safran about the issue of performance security and agreed with the company’s position. He reasoned that at the time the contract was signed, Safran “had performed more than 60 per cent of the contract” in what he termed as a “high risk” venture.
Against this background, it would appear Safran was the master here; IEBC merely complied. “Retaining one company over a long time puts the organisation at the risk of compromise,” says Dr Nyanjom.
Certainly we have never seen this type of investigative reporting, yet, for the momentous election of 2007.
The exposure of the rejection of USAID’s allocated funding for purchase of the Results Transmission System (RTS) under the Kenya Electoral Assistance Program 2017 (KEAP) is fascinating. This could explain a discrepancy I have been a bit concerned about. I was told that we (the United States) were funding the KIEMS system and had high confidence in it (this time), based on other implementations of the same system elsewhere. Then the USAID press office said after the election as I worked on a piece for The Elephant that we had not in fact paid for it. Perhaps the first report was not so much flatly wrong information as a good faith assumption that did not pan out when the planned assistance was rejected?
Unfortunately, I am left with concern about why USAID and IFES went ahead with the Kenyan Election Assistance Program, including IFES’ work directly with the IEBC and its management of the NDI and IRI components after the rejection of the RTS funding to proceed with Safran-Morpho. Especially since IFES had already been attacked by the Jubilee Party and the Government of Kenya and had to replace the highly qualified incumbent country director apparently to appease the incumbent. See “Why has Uhuru Kenyatta’s government acted against USAID and IFES?” from December 20, 2016. “State now expels American NGO’s boss, Genet Menelik” Standard on Sunday, Jan 1, 2017.
The background for my reaction to this news includes the unexplained “shelving” by the ECK in 2007 of laptop computers purchased for it by USAID which facilitated the alteration of paper tally sheets at the ECK central headquarters in Nairobi to deliver the election to the incumbent and the “failure” of the RTS in 2013, which was attributed to a failed procurement by the president of IFES in subsequent U.S. Congressional testimony.
One could wonder if the Government of Kenya has opted not to lean on the Nation in this instance, tacitly permitting the expose to at least the current extent? One could wonder if the US Mission in Kenya and/or other donors are not seeking to step up on this in the relative tranquillity of the post-handshake, pre-referendum and/or full fledged 2022 campaign? Any of that would be speculation and I do not claim any insight as to what has caused a crack in the edifice. [Update: I have learned, and should have guessed, that underlying the reporting is research from AfriCOG/KPTJ, the Kenyan civil society free election sojourners.]
Regardless of the reason this news is seeing “the light of print” (and the World Wide Web), it would seem with hard work in follow up there might be an opening to start to “lance the boil” of corrupt election management in Kenya.
This is very basic stuff. Surely one of the minimum steps required for transparency in the administration of Kenya’s election.
And who in good faith can be against that?
I will have more to say about Kenya’s 2017 election eventually, after I finally get the public records I am due from USAID from my 2015 request regarding our assistance in the administration of the 2013 election.
[To be direct I have heard contradictory things–all hearsay–about what role the U.S. did or did not play in the KIEMS acquisition. I just do not know. Likewise the role of other donors.]
Gabrielle Lynch notes in her column in The East African, “Unrealistic timelines to blame for Kenya’s election shortcomings,” that the time to implement the gender balance rules of the Constitution under the previous Supreme Court opinion has been blown, and other deadlines are upon us. Dr. Lynch goes through the various pre-election deadlines which were set in legislation and are now in some flux. She raises the prospect of jetisoning some of the technology because what she refers to as compressed timelines.
To me, the issue is a lack of political will, which is independent of the time involved. Legislation to implement the mandatory requirements of the Constitution on gender balance was not passed because the legislators in power, along with the President, didn’t feel like it. They like the old way better than what is required by the “new” (seven year old) Constitution. There has been plenty of time since 2013 to pass gender balance legislation, just as there was plenty of time to replace the fraudulently procured technology systems purchased with the assistance of the United States and other donors for the 2013 election.
Likewise there was plenty of time to legally address the procurement fraud issues as directed by Supreme Court’s decision of April 2013 on the election petitions.
This time the incumbent administration has attacked the donors who are providing an additional $85 million to defray the cost of the election in spite of all the obvious questions. The donor group through its diplomats has pledged transparency this time, but very little specific information has been published on the details of the programming so far.
Unfortunately my October 2015 Freedom of Information Act request to USAID for contract documents from our support for the IEBC in 2013 has still resulted in zero
Kenya presidential ballot
released documents (even though materials were sent from the Mission in Kenya to Washington more than a year ago.)