The anti-corruption commission has recommended the prosecution of four top electoral commission officials over the Sh1.3 billion electronic voter identification kits that failed during the March 4 elections.
The four are Independent Electoral and Boundaries Commission (IEBC) chief executive James Oswago, the deputy commission secretary in charge of support services, Mr Wilson Shollei, the director of finance, Mr Edward Karisa, and the procurement manager, Mr Willy Kamanga.
In a letter to the Director of Public Prosecutions (DPP) Keriako Tobiko, the Ethics and Anti-Corruption Commission (EACC) says the four should be charged with four counts of failing to comply with procurement laws and abuse of office.
The charges relate to the tender to procure Electronic Voter Identification Devices (Evid) which was awarded to a private company, Face Technologies, at a cost of Sh1.3 billion.
Mr Tobiko is expected to decide this week whether the four have a case to answer, said a senior official in his office who cannot be named because he is not authorised to speak to the media. He added that the file was forwarded to Mr Tobiko mid last week.
If the prosecutor clears the charges, this will be the first time electoral officials would be held to account for hitches that almost bungled the election. The EACC is still investigating the procurement and management of biometric voter registers, popularly known as BVR kits.
In its ruling in the petition filed by Coalition for Reforms and Democracy (CORD) challenging the victory of President Kenyatta and his deputy William Kenyatta in the poll, the Supreme Court recommended the prosecution of top IEBC officials and vendors of the Evids and the Result Transmission System (RTS) which failed during the poll. This disrupted the tallying of votes, delaying the exercise by four days.
“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, ruled.
MANIPULATION OF RESULTS
Mr Raila Odinga and the Africa Centre for Open Governance (Africog), which also challenged the presidential results, argued that the glitches created room for manipulation of results between polling stations and the national tallying centre at the Bomas of Kenya, Nairobi.
In the first count, Mr Oswago and Mr Shollei would be charged with jointly and willfully failing to comply with Section 47 of the Public Procurement and Disposal Act and Regulation 31 of the Public Procurement and Disposal Regulations by failing to ensure that changes made to the contract awarded to Face Technologies Ltd by the IEBC for the supply of the Evids were approved by the IEBC tender committee.
In the second count, they are accused of using their offices improperly to confer a benefit on Face Technologies by approving the payment of Sh1.3 billion for the supply of the devices without ascertaining that they were inspected, accepted and met the technical specifications in the contract.
In the third count, Mr Oswago, Mr Shollei, Mr Karisa and Mr Kamanga would be charged with breaking procurement regulations by failing to ensure that the devices were inspected and confirmed as having met the required technical standards.
In the fourth count, Mr Oswago and Mr Shollei are accused of using their offices improperly to confer a benefit to Face Technologies by approving changes in the contract for the supply of the devices without approval for contract variation by the IEBC tender committee.
Sources told the Sunday Nation that the EACC had also forwarded to the DPP another file relating to the tender for the supply of 28,000 solar lanterns at a cost of Sh105 million. The investigators found the contract was awarded to Solar Mark Ltd unprocedurally and the lamps were not supplied. The EACC wants IEBC procurement officers and directors of the company charged with bid rigging, among other malpractices.
The Supreme Court judges in their judgment concluded that 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 Dismas Ong’ondi (IEBC ICT boss), the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process,” said the judges.
Mr Ongo’ndi 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 Mr Shollei and copied to Mr Oswago, Mr Ong’ondi said the kits tender should not be awarded because of the risk that the gadgets could fail and the commission did not have capacity to repair them.
Mr Oswago, however, contended that 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 told detectives.
TRANSMISSION SYSTEM FAILURE
The gadgets 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 procurement of electronic system was marked by controversy from the beginning leading to the cancellation of tenders for the BVRs.
Former President Mwai Kibaki and Mr Odinga, who was Prime Minister, intervened and the kits were eventually delivered through a Canadian government loan of Sh6 billion.
Ironically, Mr Shollei, who holds a Bachelor of Commerce degree and an MBA from the University of Nairobi, worked with the defunct Kenya Anti- Corruption Commission where he served in various capacities including director, finance and administration. He joined IEBC last year.