confidential : the facade that is the iebc

8/10/2019 CONFIDENTIAL : THE FACADE THAT IS THE IEBC

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DRAFT

Confidential

BRIEF

The Faade that is the IEBC

To the casual eye, all is fine with the Independent Election and Boundaries Commission (IEBC),

the statutory body charged with organizing and managing the countrys elections. This trust and

high level of confidence in the Commission emanates from how IEBC was established; the

Commissioners were hired through a competitive process and the relevant committee of

Parliament vetted them.1Yet this is as far as it goes: internal rifts, inertia and lethargy, and

allegations of corruption and abuse of office are rocking the commission. Key officials are said to

be careless2, imprudent, lethargic, and have displayed a cavalier attitude in running this critical

body.

The March 4, 2013 Election is critical to Kenya. The 2007 post-election violence should have given

the IEBC impetus, and an opportunity, to organize an orderly, democratic election guided by

massive civic education. But apparently, the Commission has failed in this regard. It has no

fidelity towards election laws.3It brazenly breaches electoral timelines and tendering procedures

and rules. It delayed on the acquisition of the BVR kits, allowed primaries to take unduly longer

and the ensuing disputes to drag on for about ten days. In apparent flouting of the law, the

Commission appeared to give a nod to party-hopping after the nominations. Political parties

couldnt stick to schedules because IEBC wasnt able to play its supervisory role.

All this affected (and compromised) the countrys preparation for the next General Elections. By

implication, IEBC is playing with extreme timelines.4(Interviews indicate that the shambolicprimaries gave commissioners an opportunity to make money in the form of bribes from losing

candidates out to seek clearance from alternative parties)

The Commission is under the control of two competing centres of power: one inexperienced; the

other stiff and corrupt. One is good natured and reckless, the other is careless and greedy. The

chair is meant to work with commissioners to direct policy; instead he micro-manages the

commission by dealing directly with sectional heads at the secretariat. Theres a fusion of

government and political patronage in the management of the Commission. In fact,

commissioners still watch their backs. In law, the Commission and commissioners are meant to

be independent. But they are not. So, for whom does IEBC work?

Kenya is a constitutional democracy. Thus, IEBC is supposed to facilitate peoples participation.But it doesnt engage the public. The tendering process is very secret; the deals it enters with

suppliers are hardly made public; it doesnt consult stakeholders on budgeting; it sets election

dates according to the Executives preference. The State and its agencies, including National

Security Intelligence Service (NSIS), have infiltrated the tendering process in a manner that points

1Research on the Implementation of the Report of the Independent Review Commission (Kriegler

Commission) and Appropriate Recommendations for Advocating Adoption of Research Findings byStakeholders, Transparency International Kenya Chapter, February 2013. 2Personal interview with a governance and development expert, January 9, 2013

3Personal interview with an elections and democracy expert, January 22, 2013

4Ibid.


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to a plan to influence the next General Election. For instance, the Justice Minister, not IEBC,

called off plans to register the Diaspora vote.

Parliament hasnt made things better. MPs have maliciously watered down the legal frameworkthat governs the elections. The Constitution is solid but the statutes are weak. As at now I cannot

tell you the amendments by Parliament, says one elections and democracy expert5

Those who draw parallels between the current electoral body and its predecessor (Electoral

Commission of Kenya chaired by Samuel Kivuitu) are convinced the latter was better organised

it pulled off the 2002 elections and the Referendum on the constitution three years later. Twice,

Kivuitus team presided over elections against the incumbent (in 2002 against Uhuru Kenyatta,

President Mois chosen successor), and the 2005 Referendum in which President Kibaki was

unable to rally Kenyans round the Draft Constitution.

In the 2007 elections, the administrative preparations were satisfactory up to the time of

announcement of the results. It was the tallying of the results that was problematic. In IEBCscase, the process has already sparked a flurry of court disputes. At the centre of IEBCs

operations are a number of concerns, among them:

1. Manipulation of procurement (single-sourcing in tendering, deliberate delays that appear

to favour particular firms)

2. Political operatives, IEBC staff and other insiders appear to have wedged themselves

between bidding firms and IEBC. The retention of former ECK and IIEC staff has ensured

the infiltration of the political operatives in the operations of the Commission

3. Behind the scene intrigues that draw IEBC chiefs/competing forces within the Commission

4. Two centres of power at war with one another

5. Delays in the electoral timelines.

Divisions: IEBC is polarized between forces allied to CEO Oswago on one hand and those to

Isaack Hassan on the other. In the BVR kit case, the commissioners as well as the tender

evaluation teams were divided right in the middle, between the two forces. The divisions led to the

resignation of some members of the tender committee. While Isaack Hassan favoured Face

Technologies of South Africa and Symphony/CODE Inc. of Canada, Oswago and a group of staff

allied to him, led by the Finance and Administration manager, appeared to front 4G Identity

Solutions (4GI) of India.

Issacks point-man is Commissioner Mohamed Allawi, also known as Mr Fix It in the

Commission. Oswagos man is Edward Kenga Karisa, the Finance Administrative director.

Sharawe and Nzibo are the only commissioners whose allegiance is unknown; they appear

independent.

Commissioners are allied to particular political coalitions. In fact, an analysis by Transparency

International Kenya 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 has been politicized; that some commissioners were likely to be partisan.

Its difficult to know who is in charge at the Commission.

5Personal interview with an elections and democracy expert, January 22, 2013


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TENDERING

Things take time to evolve. For IEBC, it is the case of echoes from the past. The old patronage

system appears to be at work at the IEBC. In a recent ruling, the High Court described IEBCs

procurement of ballot papers as indiscriminate and clandestine. That apart, by handing over the

BVR tendering process to the Office of the President, IEBC (and by extension Hassan) lost

credibility and independence as the countrys electoral body. Stakeholders wonder whether

elements in the Commission are pushing their own interests or its a matter of laziness and

incompetence. Elements within and without IEBC have infiltrated the tendering process.

The Commission is not very transparent when it comes to money matters. It has failed one test

after another where procurement and financial probity are concerned. The issues of financial

integrity have a profound bearing on electoral integrity. If the IEBC cannot pass the test of

financial integrity, Kenyans shouldnt expect it to pass electoral probity and integrity.6

Manipulation:IEBC structures its tendering systems in a way that seems to favour certain

interests. In the case of BVR kit, the NSIS had its self interests to ensure that Symphony got the

tender, and to block 4GI Solutions - feared to be fronted by ODM operatives. An IT expert, Bildad

Kaggai, said to be Hassans de factoadvisor on technological matters, was NSISs man in the

tendering process.

Little, if any, due diligence is conducted on bidders. The oft-cited delays in the electoral process

(tendering) appear deliberate, either to 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 (thats why Face Tech, which had

quoted Sh810 million above IEBCs budget, was picked for the job although it later lost out to

Symphony which eventually lost out to Morpho France). PPOA has complained that unauthorized

people attend the opening of tenders7i.e. NSIS and political operatives. In the case of ballot

papers, the contract between IEBC and Smith & Ouzman talks about supply of fifteen million

ballot papers. Unless it is a typo, this figure is an extreme underestimate of the massive project.

In the case of Hopeland Adverts and Designs (the company given the tender to print 279,100 IEBC

branded bags), the Commission failed (or deliberately refused) to undertake due diligence before

awarding it the Sh80-million contract. The company has no warehouse to store the bags, thats

why Administration Police traced some of them in a residential home in Embakasi, Nairobi. That is

hardly all; the company (established in April 2008, and whose directors are John Ohas Omondi

and Martin Omollo Omondi) won the tender despite its weak assets base: It has 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. It is akin to the so-called briefcase company, and

if it were to default on this contract, IEBC would find it impossible to recover its money.

6Ahmednasir Abdullahi, Sunday Nation, p20, February 3, 2013

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Political operatives and interests:Political operatives, IEBC (and/or its predecessor) insiders haveconveniently wedged themselves between the Commission and potential bidders/suppliers. The

NSIS is also alleged to have a hand in the tendering. 4GI Solutions, which came tops in the BVR

tender but was denied on accusations that it was blacklisted by its home country, India (anaccusation it dismissed), came to Kenya through the Goldenberg architect Kamlesh Pattni, who

was its local contact. Along the way, it dropped Pattni and switched allegiance to former President

Daniel arap Moi. A political operative (a candidate for Baringo Central parliamentary seat, 2007),

Simon Yatich became the linkman between the former president and the Indian company. In fact,

Yatich represented 4GI Solution during the BVR bidders conference at Nairobi Safari Club (Lillian

Towers) on June 14, 2012. The other contact person was Jakoyo Midiwo, immediate former MP

Gem, and Joint Parliamentary Chief Whip, Railas cousin, who travelled to Hyderabad, India, to

meet its owners.

The two competing forces at the IEBC had their interests taken care of in Parliament. Hassan had

Abdikadir while Oswago sought the assistance of assistant minister James Rege, the chair of

Capital Realtime, which he co-owns with Kiprono Kittony and Rosemary Kittony. James Rege

immediate former MP Karachuonyo, sometime chair of parliamentary committee on

communications and IT.

The local representatives of Smith & Ouzman (the company awarded the Sh2 billion tender for

printing and supply of ballot papers) are Trevy James Oyombra (procurement officer of defunct

ECK) and Joseph Dena Hamisi (defunct ECK commissioner, appointed in August 2011 as director

of Kenya National Accreditation Services). Trevy Oyombra is well connected in Kenyas electoral

system. He is the person who introduced Smith & Ouzman to the ECK and its successor, the IIEC.

He is said to be among officials who destroyed key documents when the ECK was disbanded

following the botched elections in December 2007.

Through political operative Davies Chirchir (commissioner of defunct IIEC, now URP secretary

general), the IEBC chair Isaack Hassan made contact with 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 Canadian government and UNDP fronted Code Inc., which

had produced the initial kits that piloted the project in Kenya.

Bill Kaggai, an NSIS informer and close confidante of Hassan, was the front man for Haier

Electricals. He took care of Hassans interests and those of the NSIS.

Immigration Minister Otieno Kajwang is the contact person for the Thallis Group, which is said to

be printing and supplying part of the ballot papers consignment on behalf of Smith&Ouzman.

Ballot Papers: The contract for ballot papers, described by the High Court as indiscriminate andclandestine is faulty, if not deliberately drafted to favour the Smith & Ouzman Company. First, it

hugely underestimates the magnitude of the task. Based on simple arithmetic, IEBC requires a

minimum of 84 million ballot papers (14 million voters, six ballot papers each) for the first round of

voting, yet the contract states 15 million ballot papers at the rate of Sterling pounds

11,716292.12 (equivalent of KSh1.7 billion, at the current rate). Contract is for the supply and

delivery of fifteen million ballot papers and statutory result forms for the General election to the

Commission, the contract, signed between IEBC and Ouzman on December 11, 2013, states. But

in a letter to the PPOA, Oswago talks about 108 million papers plus 17 million in case of a run-off.


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Interestingly, in a letter of notification to Smith&Ouzman dated December 11, 2012, Oswago hardly

mentions the number of ballot papers but merely states supply and delivery of various ballot

papers for the General Election at the total cost of GBP11,716,201.12. He then adds: The total

cost for the General elections and Presidential re-run ballot papers shall be GBP13, 135,946.48(inclusive of run-off costs)

There can only be two explanations. One, these are presidential ballot papers. Implicitly, the IEBC

may have entered into several agreements with the firm and it is yet to make public the rest of the

contracts. If this is the case, then IEBC is not telling the public the true position about the

projects cost. Two, the flaw leaves room for renegotiations a lacuna that can be seized by

shrewd individuals within the IEBC to make money. Indeed, the contract provides leeway for

price adjustments and direct informal negotiation. Contacted by a journalist, IEBC chairman

blamed the secretariat for the anomaly. He said, These things are done by the secretariat. I

dont know why they did it that way.8

Inexplicably, this contract was signed a week before the closure of the voting exercise, when thenumber of voters wasnt clear. Thus, the rush was perplexing, given that IEBC was to dispatch

names of candidates 49 days later, after the completion of the primaries and resolution of any

ensuing disputes. In fact, according to the time-chart proposed by Smith & Ouzman, the printing

and production of ballot papers was to commence on January 28, 2013 and the ballots to be

dispatched to Kenya between February 15, 2013 and February 22, 2013.

Interestingly, IEBC gave out a letter of acceptance to Smith & Ouzman even before the company

presented its bid documents on November 12, 2013, according to a copy of the contract in our

possession. The letter of acceptance is dated November 9, 2013; issued three days ahead of the

delivery of bid documents. (It is instructional to note that Ouzman is the same company that failed

to deliver during the 2007 election: The ECK was forced to give out part of the project to

Kalamazoo Company (to print Presidential and MP ballots). Implicitly, the IEBC failed to conduct

deep due diligence on Smith & Ouzman and its local contacts)

According to sources within the IEBC, Praxedes Tororey, the director of Legal and Public Affairs

declined to append her signature to the Ouzman contract on concerns it was faulty and hastily

drafted. Instead, it was signed by her junior, Mahamud Jabane (manager, Legal Services) who is

said to be very close to the Chair. She felt there was enough time for competitive bidding or

enough time to invite a particular number of bidders. She also raised questions about the

capability of this company to deliver on time, to execute the massive project. She argued that

Smith & Ouzman failed to deliver in Nigeria, leading to the rescheduling of the countrys elections.

In all IEBC correspondences, there is no mention of Smith & Ouzmans failure to deliver in 2007.

According to Tabitha Mutemi, IEBC spokesperson, the Commission and the tender committee

approved the single sourcing because of the timing; (the company) has been tried and tested and

we have to have a supplier in place as we wait for other activities like party nominations to take

place.9She didnt indicate why there had been delay in the first instance. (It) has given IEBC an

assurance that it will meet its contractual obligations on time and IEBC has undertaken due

diligence on the matter, Oswago wrote to PPOA boss Morris Juma.

8Interview with a leading Kenyan journalist whose brief has been to cover IEBC, at caf deli, February

08, 2013,9http://www.kenyamedia.co.ke/wp/new-storm-brews-over-iebc-tender-for-ballots/


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Control:IEBC may not have control over this project. Smith & Ouzman is undercapitalized for

such a huge project. It had Sterling Pounds 9,238,816 (2011) turnover yet it was seeking to

undertake Kenyas Sterling Pounds 13,135 946 project. While some sources say Ouzman has

outsourced to Thallis Group and AI Security Printing, others said it had given part of the job to aSouth African company, which has in turn subcontracted to a Chinese company. (One of the

clauses of the initial contract between Ouzman and IEBC, December 2012, forbids outsourcing.

Insiders say Ouzman officials visited the country last month and had the clause reviewed). Those

opposed to Ouzmans award (among them Kalamazoo and Aero Vote UK) say the bidder lacks

capacity to undertake such a massive project.

It is instructional to note that Smith & Ouzman got the tender to print some NOT ALL of

Ugandas ballot papers, in the 2011 elections. It printed the Presidential and also District Woman

MP ballots papers. The rest went to three other companies Kalamazoo, Avic International

Holding Corp, and Lithotech International. According to Oswago, since the scale of the project

requires more than one printing company (Ouzman) was to source for strategic partners and

furnish IEBC with their financial and technical capacity details, which are in our possession.

However, IEBC will work only with Ouzman, which will in turn manage its strategic partners.

IEBC has no control over third parties.

BVR: In the case of BVR kits supply tender,IEBC was lethargic and tardy. While the process

began on February 22, 2012, with the invitation for bids, IEBC had not awarded the tender by

September 2013. Interestingly, despite complains that IEBC was time-strapped and the process

running behind schedule, it took the tender evaluation committee 43 three days to submit its

report (technical and financial evaluation). The deadline for submission of bids closed on March

26, 2012 yet the evaluation committee submitted its report on May 7, 2012.

Based on the correspondence we have, it would appear the delay might have been deliberate designed to favour Face Technology and/or Symphony (a company associated with businessman

Da Gama Rose and a well-known political operative of the TNA party, Mary Wambui).

Even as the IEBC squabbled as whom to award the tender, behind-the-scenes negotiations were

taking place between key officials of IEBC and CODE Inc. and/or Symphony. According to leaked

correspondences, at the centre of the under-the-table deals were CODE Inc. Marketing and

Business Development Manager Gordon Sinclair, Symphony chief executive officer Rajendar

Singh Sachdeva and IEBC chief Isaack Hassan. Political operative Davies Chirchir (IIEC

commissioner, now United Republican Party (URP) secretary general) was the linkman between

CODE Inc. and the Commission chair, and between CODE Inc. and Symphony.

It would appear Isaack Hassan secretly informed CODE Inc. that Symphony was poised to clinchthe tender. He passed on privileged information to the company. I should say that I contacted the

Chairman (Hassan) and offered a possible solution to the, can we say stalemate, and told him I

thought (sic) a way out of the dilemma might be a cooperative effort to and I thus mentioned in a

frank and direct manner we would be open in working with a another firm, said Sinclair.10

The

IEBC chief would later confirm that he, indeed, made contact with the Canadian firm. They asked

10Mr Gordon Sinclair in a letter to Symphony


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me whether they can partner and I told them to see if he can work with any of the four companies

shortlisted, but we did not identify any specific company.11

The Canadian company was well aware of the status of the tendering. In fact, as early as the firstweek of June 2012, CODE Inc. had the information the contract would go to Symphony almost a

fortnight before the Tender committee rejected the 4GI Solutions bid (the least quote) in its

meeting in June 22, 2012 and appointed a special team to carry out a financial evaluation, which

produced a report on June 30, 2012. Indeed, on June 6, 2012, Sinclair wrote to Rajendar

requesting a partnership in supply of the BVRs. In the letter he claimed to have close relationship

with the head of the commission, one based on mutual respect, in apparent reference to Isaack.

In response two days later, Rajendar said his company was a critical juncture of the project and

our concentration is focused on closure of the deal right now. In the letter, Rajendar confirms

that his company was almost striking the deal with the IEBC.

On July 2, 2012, IEBC decided to give the tender to Face Technologies of South Africa well

aware that the tender would go to Symphony. In hindsight, Face Tech appears to have been asmokescreen. Indeed, Symphony had already been tipped off for the massive project. Because

some people had eaten Face Techs money, the whole process had been choreographed to

placate the South Africans yet ensure Symphony got the job.

(Face Tech later got the tender to produce Poll Books. This was seen as a reward for having

missed out on BVR)

The IEBC chairman allegedly sent texts to a number of commissioners and members of the tender

committee to ensure Face Technology got the tender. He was at the time attending a

Commonwealth meeting on electoral management, held in Toronto, Canada. The text read make

sure you give it to Face Tech. Somehow, an IEBC insider says there wasnt enough push to have

Face Tech take the contract. They were merely interested in the money and later say, we tried togive it to you but failed.

CODE Inc. was among the 29 companies that didnt go through the initial evaluation. However, as

will be seen later, it eventually clinched the tender through the Government-to-Government deal

between Kenya and Canada. Interestingly, in his communication with Mr Rajender, CODE Inc.

hints at a compromised IEBC. We are not looking to take over this contract, although simply

saying hey, well do it all and split the profits may sound interesting to one side but it is not our

way nor our vision of things. I can say we are very open to a method that means successful

closure on this activity, it is well known in Kenya we are more than cooperative, I can safely say

the chairman will back us up on this as will many others in and around the IEBC.

From the outset, the BVR tendering was contentious. Political operatives, NSIS wedgedthemselves in the process in attempt to influence the outcome. Indeed, in a bid to discredit the

potential winner, 4G Identity Solution, the NSIS (through the Ministry of Foreign Affairs) in

collusion with some elements within the Commission, wrote to a note to IEBC suggesting that the

company had been blacklisted back at home in India. This was despite the fact that a due

diligence team that also comprised UNDP, had visited the companys premises and given it a

clean bill of health. Commissioner Allawi single-handedly fought the Indian company. Oswago

was for it.

11Mr Hassan told The Standard, www.standardmedia.co.ke/?articleID=2000062189&pageNo=2, July 19,

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4GI Solutions President claimed that his company failed to clinch the tender because it declined

to fork out a Sh30 million bribe, demanded by some people Foreign Affairs Ministry.

Oswago had written to High Commissioner, through Foreign Affairs, to carry out a due diligenceof the firm

On May 31, 2012, John L. Lanyasunya, the head of Asia and Australasia Directorate, Ministry of

Foreign Affairs wrote to Oswago thus, The (Kenya High Commission) in New Delhi has

conducted a due diligence and has requested us to convey their strong advice that their

findings indicate the above mentioned entity (4G Identity Solutions) should not be allowed to

enter into any business transaction with any Government institution in Kenya. Kindly be advised

accordingly. Interestingly, Kenyas mission supposedly took just two a day to undertake due

diligence on this matter.

Lanyasunya wrote to Mr E. M. Barine, Kenyas High Commission in India, on May 29, 2012 to

check on the following: existence of 4GI Solutions; nature of business it carries out and theexperience it has within and outside India; its financial capability to execute the contract; its legal

status, and its litigation history. It would be highly appreciated if a comprehensive report on the

above is submitted for onward transmission to the (IEBC) for further necessary action. The

following day Mr Barine communicated, saying the company had been suspended for failure to

execute a BVR project in India.

Given the gravity of the violation, despite the high priority the Government of India is giving (to

the exercise) highly tied to the future security of the country against infiltration and continued

terrorist threats, the lack of sensitivity by 4G identity Solutions to national security is in high

breach of trust the (Kenya High Commission) is of the strong view that Kenya should blacklist

the company bearing in mind the challenges facing the country in particular, international

terrorism that continue to stalk the country, Barine wrote back to the Permanent secretary,Ministry of Foreign Affairs.

The company disputed the report. In a letter to Oswago dated July 23, 2012 Dr Sreeni Tripuraneni,

the companys chief executive, produced copies of reports indicating that it had not been

blacklisted by the Indian authorities as claimed by Kenyas High Commission in New Delhi. We

have a strong feeling that (the letter by Ministry of Foreign affairs) was written after we refused to

compromise on corruption. We would like to bring to your attention that on various occasions, we

received telephone calls from people in Kenya High Commission in India and Kenyan Ministry of

Foreign Affairs, Nairobi, telling us that we needed to pay money to enable them to write a positive

letter to IEBC.

Having failed to agree to the numerous requests, a certain Mr Hadson Mboya who claims to workin the Indian High Commission in Nairobi approached our local partner demanding Sh30 million

on behalf of officers in Kenyan Ministry of Foreign Affairs to enable them write a favourable letter

to IEBC. The letter claimed that a Mr R.A Goenka (who claims to be Kenyas consul in India)

asked the company to contact Engineer James Rege to facilitate the transaction.

Later, in an interview with the media, Thuita Mwangi, the Permanent Secretary, Ministry of Foreign

Affairs, disputed the existence of a Mr Goenka as Kenyas consul in India. However, the website

for Kenyas High Commission in India says of Goenka, The Government of Kenya appointed Mr.

R.A Goenka as its Honorary Consul on 28th October 2003. Mr. Goenka who was born on 15th July

1942 has over thirty years experience in both import and export business ... Mr. Goenka has


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consular jurisdiction over the State of Maharashtra and will be useful to both Kenyan and Indian

nationals in this state.

Kenya/Canada deal: Unknown to the public, the acquisition of the BVR kits wasnt a bilateral dealbetween Kenya and Canada. Rather, the Kenyan Government borrowed money from Standard

Chartered Bank to pay Morpho France for the kits. Canada merely played the more minor role than

has been stated. Canada provided Kenya with the names of two Canadian companies that it

would be prepared to support in delivery of the project to Kenya.12

, which were Morpho Canada

Ltd, a subsidiary of Safran Morpho, France.

Morpho Canada, working in conjunction with Morpho France, was approved by Canada as these

companies had the technical ability to provide the kits within the short timeframe required.

Canada is pleased to have been able to assist the Government of Kenya with this important

initiative, which stands to contribute towards a credible, fair, transparent, and peaceful election.13

This contrasts the position by IEBC. The Agreement for sale and purchase of BVR hardware andsoftware between Canadian Commercial Corporation (CCC) and IEBC/Treasury was signed on

September 24, 2012. A down payment of 40% was made on October 5, 2012. The contract involves

supply of 15,000 BVR kits and a back-end system. The Financing Facility Agreement (FFA)

between GOK/Treasury and Standard Chartered Bank that covers the entire contract is still under

negotiation and should be concluded by 26th October 2012. It was required to have been in place

by October 15, 2012 to give an assurance that the balance of 60% of the contract would be paid.14

Canada had wanted CODE Inc. to take up the contract but the company was wound up before the

negotiations were finalized.

In the final analysis, Kenya ended up spending Sh8 billion for a project that should have cost

Sh3.2 billion

Poll Book: South-Africa-based Face Technology won this tender. However, there are concerns

about its ability to deliver and on time. Its implementation of similar contracts in a number of

African countries has been questioned in Sierra Leone, Lesotho, Namibia, Uganda, and Nigeria.

Suits:The taxpayer is faced with a huge bill arising from court cases which would have been

avoided had IEBC been meticulous in its handling of tenders. SolarMark Technologies is in court

contesting decision by the Procurement Review Board to reverse the award of a Sh200 million

contract to supply 30,000 lanterns. It says IEBC broke procurement rules in award of tender to

SolarMark Technologies.

Press: Agreement that any negative coverage would derail the elections: SEE NO EVIL SPEAK NOEVIL. Smith, owner of the company, is a friend of one of the newspapers15that had been vocalagainst the goings-on at IEBC. The Starhas since gone a bit slow on its reporting. One assumes

12Mr Grundison is the Charg dAffaires at the High Commission of Canada,

http://www.nation.co.ke/oped/Opinion/The-BVR-equipment-deal-was-above-board/-/440808/1613168/-/bqmtj9z/-/index.html13

Ibid.14

Ahmed Issack Hassan, Statement titled: Biometric Voter Registration (BVR) to Enhance Credibilityof Elections15

William Pike, The Star


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that the media has been making millions of shillings in advertisements from IEBC and would

therefore be hesitant to be viewed as antagonizing the Commission through critical coverage.

ELECTTION PREPAREDNESS

A successful electoral process has to meet a series of standards: conducive environment for a

successful and democratic electoral process; managing elections competently and inspiring

public confidence in the electoral process; settling electoral disputes efficiently and effectively.16

IEBC is prepared, in terms of legislation and institutional structures. In fact, on paper, its one of

the strongest commissions, in terms of resources and teeth. But it doesnt bite. IEBC is not at

peak performance. Indeed, just as in sports, one can build a team. But values take time to build.

Timelines: IEBC says commission is ready for the elections. Yet it has delayed on virtually every

step of the electoral timetable. Indeed, the timelines in the preparation for the elections in 2013

have been greatly compromised.

The date for the delivery of the last batch of ballot papers has moved from February 22, 2013 to

February 26, 2013.17

Will the IEBC be able to audit the ballots and transport them to respective

areas in time enough for orderly voting? This will be a daunting task.

Reports indicate that the registers have problems. The Commission held a crisis meeting on

Monday, February 18, 2013, to try to resolve the issue. There are concerns that the public will not

have enough time to scrutinize the registers because nobody knows when they will be gazetted.

ECK was to establish a clear, non-adjustable, timeframe within which all parties should hold their

primaries and certify their nominees. Section 13 of the Elections Act requires political parties to

nominate their candidates at least 45 days before the general elections. This deadline was elastic

and the IEBC moved it several times to within less than the 45 days stipulated in the law.18

IEBC

revised the deadline for submission of nomination certificates by candidates several times.19

Apart from that, IEBC failed to supervise the primaries. It was a free-for-all affair. For instance,

whereas only two million Kenyans are registered with political parties, more than six million took

part in the nominations. Jubilee Coalition has 261, 476 members (TNA 153,352 and URP 108,124)

yet returns indicated that 3.5 million took part in the coalitions primaries. CORD reported a

turnout of 1.2 million yet ODM has 83,526 registered members, Wiper Democratic Movement

80,645, and Ford-K 74,008.

Structured voter education has not been properly done and has been left too late, within thirty

days to the elections. Civic education has also suffered a similar fate, at a time when Kenya is

facing its most complex elections.20

There were delays by the IEBC in commencing voter registration, which could have resulted in

some voters being locked out due to the time pressures and other stringent requirements. The


Commission) and Appropriate Recommendations for Advocating Adoption of Research Findings byStakeholders, Transparency International Kenya Chapter, February 2013.17

Lillian Bokeeye Mahiri-Zaja, the IEBC vice chair said in KTN in a talk-show, February 18, 201318

Research on the Implementation of the Report of the Independent Review Commission (KrieglerCommission) and Appropriate Recommendations for Advocating Adoption of Research Findings byStakeholders, Transparency International Kenya Chapter, February 2013.19

Ibid.20

Ibid


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IEBC commenced voter registration on 18th

November 2013 and concluded the exercise within

thirty days.21

Voter registration took 30 days and public verification of registration took 15 days.

The time for register verification was reduced to 15 from an originally planned 30 days.

Stakeholders, among them an expert from a respected local governance organisation, worked on

the election regulations and guidelines in 2010 yet it took almost two years for the IEBC to draft

them. They were gazetted just two days before the dissolution of the 10th

Parliament in mid-

January. Thus, Parliament had a very short time to discuss the guidelines. According to the

timeline, the regulations and guidelines should have been published six months before the

elections.22

The laws have come too late because the IEBC failed to adequately advise Government on legal

reforms, in accordance with its role of advising and initiating legal (electoral) reforms.

Voter education is late, uncoordinated and ad hoc. ECK Chair Kivuitu used to hold weekly press

conference to inform the public about the commissions preparedness. Hassan only holds suchconference on prompt, when theres a crisis. The public has been left in the dark about the

goings-on at the Commission owing to a virtual info blackout.

PERSONALITIES

Hassan: He is not comfortable with Oswago and thus has his elements in the secretariat to check

on the Commissions chief executive officer. Hes very close to Gichangi, and it is said the NSIS

boss was instrumental in Hassans appointment to the electoral body.

During the Bomas constitutional development process which started in 2003, he and Abida Ali

reportedly used to make regular secret visits to State House to update Kibaki on the goings-on at

the CKRC. He believes if Kenya doesnt pull through this election, blame would be on MPs who

watered down the electoral law through various amendments. Thats his consolation.

He is tardy; he doesnt keep time. And because of this, his fellow commissioners hardly come on

time for meetings or any other engagement. The secretariat is also sloppy. In a letter to Oswago,

the PPOA talked about non-attendance of tender committee meetings by substantive

members.23

During a scheduled meeting with Kriegler, Hassan kept his guests (who included representatives

of the civil society) waiting; by the time they left, at 10 am, he hadnt shown up. In another case,

he called off a meeting with Safaricom boss Bob Collymore, which had taken months to plan. A

top governance and development expert at a key NGO says, Even when you write letters to them,

they dont get back to you.24

Some of his friends say he was very independent until he became aware that Oswago was allying

himself to ODM (refer to the stories that Miguna Miguna published in The Star). He then allegedly

decided to go to the other side. He once complained to a friend that he was being harassed by

Raila and Midiwo.

21Ibid.

22Personal interview with a top governance and democracy expert

23PPOA director M.J.O Jumas letter to Oswago, July 11, 2012.

24Interview with a governance expert


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He seemed to be working towards a Musalia Mudavadi victory, which is allegedly why Symphony,

co-owned by the UDF founder, was being fronted for the BVR tender.

James Humphrey Obanda Oswago: An advocate of the High Court who studied in Kenya and US.He loves money; hes a political operative, who unsuccessfully vied for the Rarieda parliamentary

seat in 2007. Hes ambivalent, he wants to eat. Those close to him say that he feels this is the time

to eat; such an opportunity wouldnt beckon in future, he feels. At one time he was reportedly

ferried to France and treated lavishly, to influence him to give the tender to Morphoso.

He has given Hassan so much leverage to an extent the latter micro-manages the secretariat.

Indeed, commissioners are meant to direct policy but Hassan is always part of the procurement

process.

Hassan tried to remove him after the expiry of IIEC but a Mr Ben Ombima, a voter in Vihiga, rushed

to court to stop the IEBC move. Lawyer John Harrison Kinyanjui fruitlessly sought the help of the

courts to block Oswago.

The retention of former IIEC and ECK staff has given political operatives (Yombra, Chirchir, Dena,

Bill Kaggai25

etc.) space to infiltrate the operations of the Commission.

CONCLUSION

According to the Constitution of Kenya 2010, Articles 88(4) and 99, the superintendence, control

and direction of conduct of all elections including referenda in Kenya is bestowed to IEBC. The

phrase conduct of elections is held to be of wide amplitude. Therefore, IEBC has all the powers

over the conduct of the election including party nominations, verifying integrity of election

candidates, scrutiny of political party and independent candidate election campaigns expenses

incurred in order to maintain purity and transparency of elections.

IEBC must understand that its persistent inconsistencies on fundamental processes of election

leading towards March 4, 2013 including enforcing the law gravely undermine its institutional

integrity and credibility. Further trust of the public, of election candidates and of political parties

in the electoral process and the way in which it is administered are crucial not only for the

electoral exercise itself, but for the credibility of the government that results. The Grand Coalition

Government had a serious legitimacy deficit caused by irresponsible and reckless electoral

institution compromised by partisan political actors. Public and political players perceptions are

key and IEBC should take this very seriously.26

In as much as transparent and competitive recruitment as well as the hiring of permanent staff

that are dedicated to the organizational objectives have bolstered the credibility and functionality

of the IEBC, there is still a challenge in achieving independence.27

This time round, we are the most ill prepared for the elections that we have ever been. The legal

framework should have been in place a year ago. But by last September, many things were not in

order.

25Kaggai was reportedly involved in intimidating an ICC witness into recanting his testimony

26A policy expert


Commission) and Appropriate Recommendations for Advocating Adoption of Research Findings byStakeholders, Transparency International Kenya Chapter, February 2013.


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(Ends)

confidential : the facade that is the iebc

Documents