BY DAVID DICOSTA
Revelations from court proceedings in London where a British company is being sued for bribing Kenya’s electoral body officials to win ballot paper printing tenders do not come as a surprise to Kenyans.
Save for the finer details of who played what role and got what in the upper echelons of the Independent Electoral and Boundaries Commission (IEBC), the “Chickengate” scandal only confirmed our worst fears: The Commission is a cash cow. It is a stepping-stone for individuals intent on enriching themselves at the expense of taxpayers.
The one institution, however, heavily exposed in the UK court is the Ethics and Anti-Corruption Commission (EACC) whose sole mandate is to “combat and prevent corruption and economic crime in Kenya through law enforcement, preventive measures, public education and promotion of standards and practices of integrity, ethics and anti-corruption”.
The Supreme Court in its ruling in the Presidential Petition after the last General Election recommended further investigations and possible prosecution of the IEBC tender committee members who participated in the procurement of faulty technologies used in the elections.
Faulty technologies that had resulted in IEBC reverting to manual procedure in conducting the March 4 2013 elections despite huge budget allocations had formed the bulk of the petitioner Raila Odinga’s case.
Physical voting, and more so transmission of results to the national tallying centre were singled out as the reasons why the 2007 General Election was bungled, leading to the slaughter. None other than the Independent Review Commission, popularly known as the Kriegler Commission recommended an electronic voting system in subsequent elections.
The Kenyans were to pay through their nose as government allocated the Commission a lot of money towards achieving the same. It failed. Electronic Voter Identification Devices and Result Transmission System jammed in the March 4, 2013 elections.
Even though the Supreme Court did not concur with the petitioner, it ruled, based on the affidavit filed by IEBC’s director of information and technology Dismass Ong’ondi, that it was likely that competing interests involving impropriety and possible criminality marred the procurement of kits for electronic voting. Ong’ondi said that the failure was occasioned by wrangles among the IEBC members during the procurement and that the same had resulted in the failure by the Commission to assess the integrity of the technologies in good time.
“Different reasons explain this failure but, by the depositions of Dismas Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process.
“It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality; and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects,” the Supreme Court ruled.
Given the mandate and funding of the EACC, one would have expected that all rot at the electoral body would be exposed and everyone involved in any form of corruption would be recommended for prosecution.
That the anti-corruption body would not limit itself to the Supreme Court’s recommendation that focused only on the electronic voting kits but rather, it would seek to thoroughly investigate the commission with a view of cleaning it up. It did not.
In October 2013, EACC recommended the prosecution of IEBC CEO James Oswago, deputy Commission secretary in charge of support services Wilson Shollei, director of finance Edward Karisa and the procurement manager Willy Kamanga over the Sh1.3 billion voter identification kits. Like an obedient adolescent with limited imagination, the EACC stuck strictly to instructions of the Supreme Court, closing its eyes to resultant evidence that could link the IEBC to other scandals.
Chickengate exposes the who’s who in the IEBC that received kickbacks and other emoluments from Smith&Ouzman, a UK based printer, from as early as 2010 during the constitutional referendum.
Prosecution documents filed by the Serious Fraud Office (SFO), UK’s independent government department that investigates and prosecutes complex fraud, bribery and corruption and pursues proceeds of the crime have revealed that Smith&Ouzman met the travel and hotel accommodation costs for IEBC officials who traveled to the UK in an effort to influence them to award it tenders for printing election material for the 2010 referendum.
The prosecutors say that Smith&Ouzman paid for the four-day tour by the Interim Independent Electoral Commission (IIEC) chair Issack Hassan, chief executive James Oswago, head of legal services Praxedes Tororey, commissioner Ken Nyaundi and a person only identified as Sang, to the UK to assess the firm’s capacity to print election materials, including booking their hotel accommodation.
Accommodation costs amounting to Sh421,400, the prosecution says in their filing, were later deducted from the bribes eventually paid out to the officials.
Smith & Ouzman, through its local agent Trevy James Oyombra paid out a series of bribes disguised as commissions and variously referred to as “chicken”, to officials of the electoral body.
Documents filed in the UK court show how tendering at the IEBC was marred by self-interests to the extent that Smith&Ouzman were given the competing bids and even hinted on what excuses would be given to disqualify the competitors.
The company, court filings show, paid out up to Sh50 million to IEBC mandarins to win tenders for the supply of materials in four by-elections after the 2007 General Election – Shinyalu, South Mugirango, Bomachoge and Matuga – and the 2010 referendum.
Besides Hassan and Oswago, the other casts in the ring of corruption include Cabinet Secretary for Energy Davies Chirchir who at the time was a senior manager at Interim Independent Commission (IIEC), sacked Judiciary Chief Registrar Gladys Shollei who at the time was deputy chief executive at IIEC and Kenneth Karani, a senior procurement officer.
SFO’s forensic investigations show that Smith&Ouzman received ten payments in total amounting to Sh192 million from IIEC between September 2009 and December 2010, out of which the company retained Sh67.3 million and paid Sh53.3 million to its agent from which Sh47.3 million was paid out as bribes to IIEC officials.
“On 18th August, 28th September and 8th December 2010, (Smith & Ouzman) received payments for this contract. The receipt of the first payment prompted an email enquiry on 24/8/2010 from Trevy to Nicholas Smith: “Let me know once you send the commission for the referendum. These guys are already on the table waiting to be served,” the filings say.
Bottom-line, prices for election materials were inflated by huge margins after factoring in the kickbacks. For instance, the cost of election materials for the Matuga and South Mugirango by-elections and various civic polls jumped 34 per cent to £69, 626 (Sh9, 817, 130) from an initial price of £52,079.80 (Sh7, 343, 251) after factoring in the kickbacks, an increase of Sh2,473, 879.
This exposé covers only the period prior to the transformation of IIEC to IEBC, before the commission acquired its full status as an electoral body with added mandate of boundaries’ demarcation. It only covers what took place during the by-elections from the botched 2007 General Election and the 2010 referendum. This was the time Issack Hassan’s team was showered with praise for successfully carrying out these exercises from which he won the confidence of Kenyans and thus conferred him the responsibility to chair IEBC. What about IEBC’s conduct during the real elections in 2013?
The court proceedings in the UK have also revealed that Kenya National Examination Council (KNEC) top officials received Sh1.1 million in bribes from the same company and through the same agent. The directors of Smith&Ouzman, Christopher and Nicholas Smith are said to have used Trevy Oyombra to bribe the officials to win back the tender, which had allegedly been given to another company.
Did EACC do a shoddy job that in the end did not lead them to discover the chicken scandal? Or did they merely gloss over it to cover for some big shots in government? Is the anti-corruption body complacent despite the billions of shillings in budgetary allocations it receives to fight corruption?
According to insiders, vested interests at EACC have influenced investigations into mega economic crimes to save the skin of well-connected individuals. Recommendation for prosecution of IEBC chiefs was not without controversy; some EACC top officials vouched for some suspects to be let off the hook.
EACC, in spite of the central role it should play in Kenya’s governance, is yet to burst a major scandal on its own thorough, painstaking investigations.
The only times EACC announces a major breakthrough, is when its investigators arrest traffic police officers for taking bribes on Kenyan roads.
It took the UK’s SFO’s prosecution of Smith & Ouzman for Kenya to know the rot at IEBC. And the response to the revelation by the CEO at EACC, typical: “We are keenly following the happenings there. That will also help us in what we are doing here,” EACC chair Mumo Matemu said in an interview.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
