BY IAN RAMAS
On February 11, 2013, three weeks to the elections, an assembly of key lawyers, human rights advocates and political scientists wrote to the Chief Justice Willy Mutunga drawing his attention to the indiscretions dogging the electoral process. They cited breach of election laws, lack of enforcement of regulations and serious allegations about the conduct of commissioners of the Independent Electoral and Boundaries Commission (IEBC).
“These concerns have a direct bearing on the conduct of free, fair and credible general elections beginning on March 4, 2013,” AFRICOG director Gladwell Otieno wrote on behalf of the independent group, Kenyans for Peace with Truth and Justice (KPTJ). “The IEBC has failed to assert itself with regard to enforcing the law with regard to the malpractices …”
Failure to reign in these breaches of law will lead to political impunity and disregard for the law at the General Election, they said. Accompanying the letter was a detailed memorandum that had been submitted to the National Council on the Administration of Justice (NCAJ) that detailed the rot at IEBC.
The following day, Dr Mutunga wrote back. “I have noted the contents of the letter and the enclosed memorandum to the National Council on the Administration of Justice which are urgent issues to be dealt with. For this reason I have invited the stakeholders of NCAJ for an urgent meeting on February 21, 2014 at 9.00am to deliberate on the same. I have also enclosed the memo for their perusal before the meeting.”
The 27-member NCAJ was established under Section 34 of the Judicial Service Act (No. 1 of 2011). It is a high-level policy making, implementation and oversight coordinating mechanism that draws State and non-State actors. Its mandate is to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.
The Chief Justice is the Council’s chairperson while the Registrar of the Judiciary is the secretary. Other members include the Attorney General, Director of Public Prosecutions, Inspector General, a number of principal secretaries. Non-State members include Ombudsman, and heads of IEBC, Law Society of Kenya and,Kenya Law Reform, among others.
Implicitly, all the people who matter in the justice system were aware of the alleged irregularies, for they received the memo both from Dr Mutunga and KPTJ as well. IEBC itself was adequately informed.
If indeed, the Dr Mutunga and the NCAJ met then the deliberations have never been made known. In the eye of the public, no intervention happened. IEBC‘s conduct has been questioned. Reports about rigging, failure of the requisite electoral equipment and bribery have refused to go.
But, implicitly, questions about IEBC’s dubious conduct were raised even before the March 4 date. Apart from KPTJ, several other organisations, including AFRICOG and Transparency International, crafted reports that detailed irregularities at the IEBC, the statutory body charged with organizing and managing the country’s elections.
Facade
Now, it’s emerging that all was not well at the IEBC. A court in London has exposed the shady dealings between senior electoral officials and a UK company that supplied ballot papers for the March2014 elections.
This publication, The Nairobi Law Monthly, has sieved through a trove of reports and analysis produced before the general election to reveal behind the scenes operations at the Commission, including KPTJ’s memorandum to NCAJ.
To a casual eye, IEBC walked into the 2013 elections with clean hands. This trust and high level confidence in the Commission emanated from the way IEBC was established – the commissioners were hired through a competitive process and later vetted by the relevant committee of Parliament.
But that was just a façade. This publication has established that internal rifts, inertia and lethargy, and allegations of corruption and abuse of office were already rocking the Commission months before the election day. Key officials were said to be careless, imprudent, lethargic, and displayed a cavalier attitude in running this critical body.
IEBC was under the control of two competing centres of power: One inexperienced; the other stiff and corrupt. One was said to be good natured and reckless, the other was careless and greedy. While the chair was meant to work with commissioners to direct policy, he instead appeared to micro-manage the commission by dealing directly with sectio heads at the secretariat.
The procurement process was very secret. The deals IEBC entered into with suppliers were hardly made public. In fact there were fears that the State and its agencies, including National Intelligence Service (NSIS), had infiltrated the tendering process. For instance, the then Justice Minister and not IEBC, called off plans to register the Diaspora vote.
This publication has established that at the centre of IEBC’s operations were a number of concerns, among them:
Manipulation of the procurement procedures
The retention of defunct Electoral Commission of Kenya (ECK) and Interim Independent Electoral Commission (IIEC) staff ensured the infiltration of the political operatives in the operations of the Commission
Existence of two centres of power at war with one another
Tardiness in meeting Commission’s mandate
Divisions
Unknown to Kenyans as they went to the voting booths in March 2013, IEBC was polarized between forces allied to chief executive James Oswago on one hand and Isaack Hassan, the chairperson, on the other. In the case of tendering for BVR and ballot papers, commissioners as well as the tender evaluation teams were split right in the middle, between the two forces. At one time, the divisions led to the resignation of some members of the tender committee.
For instance, in the BVR tendering, while one faction appeared to have favoured Face Technologies of South Africa and Symphony/CODE Inc of Canada, the other led by senior officers in the Finance department appeared to front 4G Identity Solutions (4GI) of India.
In fact, an analysis by the Transparency International showed internal wrangles particularly between the top officials of IEBC as an indication of lack of cohesiveness within the institution. It was generally alleged that the commission had been politicized; that some commissioners were likely to be partisan.
Tendering
For IEBC, it was the case of “echoes from the past”. The old patronage system appeared to be at work.
In a ruling, the High Court described IEBC’s procurement of ballot papers as “indiscriminate and clandestine”.
That apart, by handing over the BVR tendering process to the Office of the President, IEBC lost credibility and independence as the country’s electoral body. Stakeholders wondered whether elements in the Commission were pushing their own interests or it was a matter of laziness and incompetence.
The electoral body, it now appears, could have structured its tendering systems in a way to favour certain interests. In the case of BVR kit, the National Intelligence Service (NIS) had its self-interests – to ensure that one of the parties got the tender, even as it moved to block 4GI Solutions, perhaps fearing that the bidder had links with the Opposition. An IT expert was NSIS’s KYM in the tendering process.
As will be seen in the next articles, little, if any, due diligence was conducted on bidders.
The oft-cited delays in the procurement process appeared deliberate, to either pave way for single-sourcing or pursue particular bidders, and to circumvent the law.
In the BVR case, IEBC, apparently in breach of the procurement law, failed to develop criteria for financial and technical evaluation,
(This explains why Face Technologies, which had quoted Sh810 million above IEBC’s budget, was picked for the job although it later lost out to Symphony which eventually lost out to Morpho France)
At one time, the Public Procurement Oversight Authority (PPOA) complained about “unauthorized” people attending the opening of tenders.
Due diligence
The Commission failed to undertake due diligence before awarding the Sh80 million tender for 279,100 branded bags. The company that got the contract had no warehouse to store the bags, that’s why some of them were traced by Administration Police to a residential home in Embakasi, Nairobi.
Hardly all; the company (established in April 2008) won the tender despite its weak assets’ base: It had a capitalization of just Sh50,000 (divided into 1,000 shares of Sh50 each), according to its filings at the Registrar of Companies and Business Names, Sheria House.
And according to KPTJ memo, “the commissions single sourced Face Technologies (S.A) without due diligence and in contravention of public procurement regulations. Individuals at the Commission lobbied for the same and there was financial inducement to do so”.
The IEBC ensured that Face Technologies clinched the Poll Book tender despite reports to the effect that it had been black-listed in Uganda, Namibia, Lesotho and Sierra Leone. In Namibia, it was accused of influencing (through bribery) the tendering of electronic voter registration equipment. In Lesotho, it colluded with electoral officials to unduly alter its bids to force out competition. In Uganda, it had problems with the implementation of a $3 million (KSh270 million) NSSF computerization project and a $153 million (Sh13.8 billion) tender to print national identity cards and driving licenses.
In the case of ballot papers for the March 2013 elections, the supplier Smith&Ouzman was clearly undercapitalized for the huge project. It’s turnover in 2011 was Sh1.3 billion yet it was seeking to undertake Kenya’s Sh1.855 billion project. In fact those opposed to Ouzman’s award (among them Kalamazoo and Aero Vote UK) warned that the bidder lacked capacity to undertake such a massive project.
Politics
India-based 4GI Solutions, which came tops of the BVR tender but was denied on accusations that it was blacklisted by its home country India (an accusation it dismissed), came to Kenya through key businessperson mentioned in the Goldenberg scandal.
Along the way, the well-connected businessman dropped out and was replaced by political operatives close to President Moi’s allies. In fact, the operative represented 4GI Solution during the BVR bidders’ conference at Nairobi Safari Club (Lillian Towers) on June 14, 2012.
The local representatives of Smith & Ouzman were Trevy James Oyombra (defunct ECK procurement officer) and an ECK commissioner. Trevy Oyombra is well-connected in Kenya’s electoral system. He is the person who introduced Smith&Ouzman to the ECK and its predecessor, the IIEC.
A URP operative was the linkman for Code Inc (which was meant to produce the BVR but got wound up in inexplicable circumstances before it could embark on the task) during the tendering stage. The same company was fronted by the Canadian government and UNDP.
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