Contents of an internal audit report filed in court yesterday reveal the tenders at the center of the raging row at the IEBC that led to the Friday suspension of CEO Ezra Chiloba.
Chiloba yesterday sued Chairman Wafula Chebukati and four other commissioners in a tell-all petition, seeking to quash the suspension on grounds that the audit report used by Chebukati and two other commissioners to suspend him did not implicate him in any way.
He said it was designed to deprive him of his employment “in circumstances in which it appears by way of innuendo, or implication, that he is under investigation, or his conduct the subject of an audit process”.
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In his detailed affidavit, Chiloba recalls the proceedings of Friday’s plenary meeting that ended with his suspension.
He and his deputy, Marjan Hussein, were asked to leave the room as Chebukati circulated the audit report to the commissioners, although it was not listed for discussion. Vice chair Connie Maina and commissioner Paul Kurgat left the meeting in protest at the 'ambush', saying it was unprocedural.
According to the audit report which considered five tenders awarded for the annulled August 8 General Election and repeat presidential election on October 26 procurement laws and regulations, as well as plenary decisions in some cases, were violated.
The audit also found that in some cases suppliers delivered some items out of time even though they were procured for the election.
The audit report singles out 553 Thuraya satellite modems, BVR IBM server infrastructure maintenance and infrastructure security monitoring solutions that were delivered past the deadlines.
In a few cases, some key and pertinent tender documents, such as approved procurement requisitions and tender award notifications, were found to be missing.
The report signed by George Ong’udi, Gladys Mwangi, Fred Kariuki, Reuben Chirchir and Obadiah Keittany was written after the chairman asked the team to review five tenders awarded in relation to the two elections.
The five tenders include one for provision of election technology; support for the fresh presidential election of the KIEMS; supply, delivery, installation and commissioning of the network for results transmission; provision of BVR server infrastructure maintenance and security monitoring solutions; provision of Oracle database and security solutions.
Also audited was the tender for provision of strategic communications and integrated media campaign consultancy services.
The audit was ordered to establish whether goods were delivered in good time, whether contract prices were disbursed as stipulated in various contracts and whether the procurement law was followed.
It was also to verify if plenary resolutions were adhered to during procurement process.
In his petition filed in court yesterday, Chiloba faults his suspension by three commissioners — Chairman Chebukati, Molu Boya and Abdi Guliye on many grounds.
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First, he says they did not constitute the quorum required under the IEBC Act, which requires five members. A decision will only be carried if supported by four. At Friday's meeting, six commissioners were present; only three voted for the suspension.
Two, Chiloba says the human resources policy of IEBC does not provide for compulsory leave and so the decision has no basis.
Chiloba also says his right to be heard was violated. He was never served with the allegations which necessitated his being sent on compulsory leave.
“To date, I have not been informed of any allegation made against me in the report or elsewhere. Indeed, I was not afforded ample, or reasonable time to peruse and or comprehend the content of the said report before I was asked to leave the meeting. Further, I was not given an opportunity to comment on the report either in writing or orally prior to the impugned decision to send me on compulsory leave,” he protests in his petition.
The memo suspending him only stated he was being sent on ‘compulsory leave’ pending audit of all major procurements relating to the 2017 General and Fresh Presidential Elections’.
Chiloba further says that neither the commission nor Chebukati notified him in writing, or at all, that the meeting of April 6 would deliberate on matters that would result in adverse actions against him. In any case, he says, the internal audit report a copy of which he was not given and he had to rely on one passed to his deputy, Marjan does not contain any adverse findings against him which would justify his being sent on compulsory leave.
After he and his deputy who takes the minutes were asked to leave the room, Chiloba says, Chebukati later sent a memo to Marjan asking him to include what he “referred to as additional resolutions with the request that he includes them as part of the minutes of the meeting”.
The additional information related to the resolution to suspend Chiloba, which vice chair Maina disassociated herself from.
Chiloba details the events leading to the meeting convened by Chebukati before the scheduled date of April 12 because he had to fly Nigeria on April 6.
He accuses the chairman of trying “to undertake the role reserved for the secretariat, which has caused differences between them".
He avers that he has always gone out of his way to even informally discuss with the chairman and any concerned commissioner in an effort to establish a cordial working relationship, but which is not reciprocated. He cites the incidents, including on January 22, when he invited the chairman on an out-of office meeting to discuss matters pertinent to their working relationship.
But to demonstrate how the chairman has going behind his back, he says that while he was on leave, on December, 21, 2017, Chebukati “wrote to the acting CEO demanding for a report to be submitted to him before or on 5th January, 2018, which was the date of my resumption of duty”.
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Chiloba dismisses the state reason of his leave to pave way for an audit as mischievous because the Auditor General who has the constitutional mandate to audit the Commission has been undertaking an audit in relation to the 2017 General and fresh presidential elections since January 2018, and the commissioners know it.
The CEO accused IEBC officers of malfeasance in public office by subjecting him to an illegal removal from employment.
He wants the court to stop implementation of decision of the three commissioners and order that he be allowed to resume his work.
He also seeks an order barring the commissioners or IEBC from victimising and subjecting him to vendetta, witch-hunt, terror, psychological torture, intimidation and vilifying him in a devious scheme to hound him out of employment.
Chiloba also wants the court to declare that the three commissioners violated the code of conduct of the commission and he seeks unspecified damages for the suffering to which he has been subjected.