Senior principal magistrate Felix Kombo found the prosecution proved its case in nailing the two over charges of abuse of office and wilful failure to comply with the procurement laws. He gave each the option of a four-year jail sentence or pay Sh7.5 million fines.
Oswago and Shollei opted to pay the fines. The former CEO has since appealed his conviction.
Star writers LUKE AWICH and GORDON OSEN sat down with Oswago for a wide-ranging interview on what happened during the controversial tendering process, the so-called Chickengate scandal, and the controversies that bedevilled the 2013 polls. Excerpts:
The court has faulted you for variation of the functionalities of the voter identification gadgets delivered because it was initially supposed to be hand-held gadgets but it later changed to laptops. What was your role in this claimed irregular change of supply specifications?
There was a contract signed in October 2012 and before that there was an advertised tender. In the tender documents you don’t specify whether it is hand-held or laptops because that is barred by law. You only say the functionalities you are looking for. So, the tender did not specify. But the contract signed specified that 30,000 hand-held devices were to be supplied. Later on, the vendor could not supply the 30,000 devices and the vendor proposed to supply laptop devices but with the same functionalities. IEBC had somebody called IFES, an international technology consultant, and it supported the vendor’s proposal. So, we called a meeting of the plenary, having the commissioners on January 25 and 26, 2013 where IEBC ICT directorate and the vendor made presentations of the devices proposed. The board, with commissioners sitting, resolved to have the vendor supply the laptop machines. The benefit of having the laptops was that you could deploy them to other uses in the intervening periods between elections. The decision was not made by James Oswago. It was made by the plenary. Now the charge says that with the plenary having approved the laptop-based solution, it was the CEO’s job to take the changes to the tender committee to approve them.
In the second charge, you are accused of failure to cause the gadgets to be inspected. What was your involvement in the evaluation process?
Our warehouse is in Industrial Area where these things are delivered. There, we have someone called warehouse manager who receives these goods and does a detailed inventory. It is his job to call the inspection and acceptance committee. It is important to know that the inspection and acceptance committee or even the tender committee is not just people sitting there. They have other full-time work at the commission but when they are required, they are summoned. It is the responsibility of the warehouse manager to inform the inspection and acceptance committee that the goods have arrived and to summon them to attend and inspect their conditions. Don’t take my word for it. This is the statement of the warehouse manager himself to the court. He said that it was his job to summon the inspection committee and that he knows them by name. He said when these goods arrived, he inventoried them in a form called S13, a number of which he produced in court, adding up to the total of 34,000. But he said when these things arrived, he consulted his immediate superiors, and one of them was the director of ICT and he said on record that the director told him that there was no time to do inspection and that in any case, even if the inspection was not done, the damage would be minimal. The warehouse manager also said he consulted the director of finance and procurement who was his immediate boss whom he said told him two things. One was that a there was no time for inspections and second, that the members of the inspection and acceptance committee were not available. This is the evidence on record. He then said based on that, he released the goods. When asked whether he told the CEO that these goods had arrived, he said he did not. The manager has a clerk, who also tendered evidence in court. When asked whether he informed the CEO about the arrival of the goods, he said that was outside protocol, meaning it was inconceivable.
But some people would argue that as the head of the secretariat, the buck definitely stops with you. In fact, the court held that you did not cause the materials to be inspected, not that you did not inspect them yourself. Do you agree?
The Public Procurement Act has a provision which says that the CEO is responsible for the implementation of the Act. That law also says that anyone in any public office takes criminal liability for not doing their work. So, what does the CEO do? He forms the inspection and acceptance committee which then becomes independent. The CEO forms the tender committee, which again, is independent. Both committees have a chairman and a secretary. What the CEO does is to put people in the committees who are qualified to do their work. And to facilitate them. When the law says that a committee is independent, the first person they are independent against is you who has formed them. If the safeguard is not there, then the CEO will be calling the committees to direct them on what to discuss and what to do. The charge says I did not take the changes to the tender committee to approve yet the words of the law are that the committee’s work is to consider the changes. Therefore, the argument that the CEO takes the buck is just a cliché and not the law. None of the 30 witnesses ever said the CEO was told and it was in fact his job to go inspect the goods. Now the court says the CEO may have heard that the goods had arrived. I won’t go there because that is the limb of our appeal.
The judgment is not very clear as to loss of money. Was public money lost or did Kenyans get value for money for the gadgets procured under your watch for the 2013 elections?
Let me speak for myself. It is the court record that then chairman Isaac Hassan testified that there was no loss. In fact, he said that in buying these things, IEBC got a Mercedes for the price of a Toyota. Everybody else, including myself interpreted that expression by Isaac Hassan that we got value for whatever it was. But the prosecution and the court think that the expression has a different meaning; that it does not necessarily mean that you got a better thing. Isaac Hassan as chairman of IEBC is qualified to become a court of appeal judge. You don’t second guess what he says in English. In any case he should have been asked what he meant. Everybody, including the chair of the tender committee, said no single coin was lost.
But considering that on Election Day there was mass failure of these gadgets and that has fed into the loop of conspiracy theories surrounding the much contested 2013 election, do you think Kenyans got value for money in the procurement and if no, who should take responsibility?
In determining whether Kenyans got value for money in the EVIDS, the person with that answer is the one who designed it. Those who designed the system include the director of ICT and his technical team. The director was prosecution witness number one. Together with numerous other witnesses, they all said the devices worked 48 per cent on Election Day. After that election, there were by-elections, they worked 100 per cent. Now if you buy a gadget and on the first day, it does not work optimally but on a second day of use it performs as required, then it’s not the gadget nor the process of procuring it, but how you use it. Ambassador Nzibo, chair Hassan and vice chair Lilian Mahiri Zaja all testified that these things did not work on the day because of logistical challenges and inadequate training as they arrived a little bit late. Incidentally, we did not call any witness in this trial. All these exonerating evidence are from prosecution witnesses.
How does this case relate to Chickengate in which supposed collaborators got swift convictions in London? What was the extent of your involvement?
Competitors of Smith and Ouzman for a long time complained that it was crowding them out in Africa and that there was likelihood that it was bribing its way. They complained to the Serious Fraud Office. SFO would investigate behind the scenes for a long time and eventually concluded that the company used bribes to maintain its stranglehold. They investigated Kenya, Malawi, Ghana and Mauritania. At some point, the SFO carted away the computers from Smith and Ouzman offices from which they gleaned information of interest. For Mauritania, the SFO discovered that Smith and Ouzman sent vast sums of money direct to an account in France. The account was run by two daughters of a minister responsible for running elections in Mauritania. Smith and Ouzman could not explain the transactions satisfactorily and neither could the minister. That is why the company got prosecuted. The court in Warwick jailed the directors and the top bosses.
For Kenya, the company found a treasure trove in the computers between a local agent of the company and its London headquarters. The communications were to the effect that commissioners so and so have met the Kenyan office and they are demanding something small. It was the era of IIEC in 2009. In 2009 I had not joined the commission. I joined in 2010, therefore it had nothing to do with me. If you look at the communication in the trove James Oswago is mentioned twice; one is when the agent told the London office that ‘we have a new CEO, I think we’ll work with him’ and second when I travelled to London.
Now in Chickengate, I have two cases; me, another lady and the agent. On May 4, 2010, the IIEC sat down over a court declared by-election in South Mugirango to be conducted in 90 days. In a by-election you cannot do an international procurement of ballot papers. Normally, it is direct procurement. The commission decided, on that day, that I contracted Smith and Ouzman directly for ballot papers. There are minutes that led to that decision. On May 7, I wrote a letter informing the company of the commission's decision. So, the charge I’m facing is procuring the company without following due process.
