Inside the push and pull that crippled IEBC

IEBC Chairman Wafula Chebukati and commission's CEO Ezra Chiloba. (File, Standard)

A South African company came from the blues and offered to print the presidential ballot papers in a record time ahead of last year’s General Election.

In a revelation that may explain the riddle of the ongoing multi-billion shilling tender wrangles at the heart of electoral commission fall out, Ren Form CC wrote to Independent Electoral and Boundaries Commission (IEBC) CEO Ezra Chiloba offering to make the supplies in the middle of a crisis period.

Seven days earlier, the High Court had nullified the Sh2.5 billion tender awarded to Al Ghurair to supply the essential papers. In a letter dated July 14, 2017, Ren Form CC makes it clear that it had been asked to make the offer but does not state by whom.

Mystery proposal

Chiloba has tabled the mystery proposal in his bundle of court documents challenging his suspension. Through it, he hopes to demonstrate that he is being fought for other reasons other than those cited in an internal report that formed the basis of his suspension.

“We have been asked to respond to a request for the printing of the presidential ballot and declaration forms for guaranteed delivery to Nairobi airport in order to comply with the IEBC timeline for the national election process on August 8, 2018,” the letter by Jean Pierre du Sart, signing as sales director, says.

The company confirmed that it would complete the printing of the papers by August 2 if the production were to start by July 21. They also attached with them a detailed proposal of 21 items, among them company registration documents, tax clearance certificates and customer reference list.

Three days later, the commission plenary met and agreed to source for an alternative company to Al Ghurair. A day after the plenary meet, IEBC chair Wafula Chebukati wrote to Chiloba two almost identical memos bearing similar reference number and demanding compliance with the decision and update on the same.

In the first memo, he makes reference to identification of “an alternative international company” and demands compliance by close of business of the same day. However, in the second memo, he limits the identification to “alternative company” and increases the time-frame for implementation by a day.

“I hereby instruct you to submit a report on the implementation of the plenary decision to my office by close of business July 19, 2017,” he wrote.

 

From the memos, it is not clear if Chiloba complied. A day later on July 20, however, the Court of Appeal restored Al Ghurair’s place in the tender, overturning the High Court decision that had knocked them off. The matter went moot.

The Al Ghurair tender, as controversial as it was, is however not in the prime list of five tenders informing the recent split in the commission and which led to the suspension of the CEO.

In its place, the commission through the chair singled out five ICT-related contracts whose sum worth is Sh4.7 billion for detailed audit.

By February 6, and before any audit had commenced, Chebukati was making it clear where the blame lay. In a memo to the CEO seeking clarifications on the major contracts for the election, excluding the ballot printing, he reminds him of a May 18, 2017 plenary decision which required his approval to be sought prior to execution of contracts.

Security guarantee

“I however note that on various contractual undertakings set out thereafter you did not notify the commissioners through my office and different issues have since emerged that require your prompt clarification,” he wrote.

The first issue he raised was failure of the secretariat to secure a performance security or guarantee from the Sh2.3 billion KIEMS supplier Safran Identity Security for the repeat presidential poll.

He also raised the issue of the partial deployment of KIEMS kits and wondered why the contract cost was not shrunk to factor the change.

The second issue involved the delivery of Sh912 million worth of Thuraya IP satellite phones by Airtel Kenya for GSM transmission. Although the commission procured 1,553 devices, only 1,000 devices had been delivered by the time the two elections were held.

On the third issue, the chairman sought to know why the Sh435 million tender for provision and maintenance of BVR server by IBM was delivered after the elections and what remedial action was being taken against the company.

The fourth inquiry regarded the documentation for the Sh269 million tender for provision of Oracle database and security system for KIEMS. Finally, the chairman wanted an appraisal of the Sh764 million tender for provision of strategic communication and integrated media campaign.

In the latter tender awarded to Scanad Kenya, the chairman raised four queries on revision of time frame from 12 months to four months, utilisation of the funding vis-a-vis the reduced time-frame, reduction of terms of reference and identification of the bidder.

In response to the issues, Chiloba said contracting for the repeat presidential elections was curtailed by time constraints. As a result, Safran Identity Security had to commence project activities way before a formal contract was issued.

On the issue of performance guarantee, Chiloba swung an opinion obtained from the legal department saying that that the circumstances obtaining at the time of the execution of contract were such that to insist on performance security would be utterly unmerited as the supplier had already over-committed themselves at great risks.

As to the actual performance, he surmised that the contract was premised on assumption that it would be conducted in all constituencies. On the matter of the 553 Thuraya phones which came late, he said they were meant for future IEBC processes.

“They were not for a one-off event,” he said.

He makes a more or less similar argument for the IBM East Africa tender saying some aspects of the tender were delivered after the election “largely because of delayed payments.”

IBM eventually terminated the contract on October 9, 2017 over delayed payments.

“Indeed, the commission faced challenges with budgets and exchequer to the extent that the first payment was made way after the election.”

The CEO also vouched for the Oracle tender and its integrity as well as the Scanad Kenya tender which he blames the commission for reducing scope from 12 to four months late into the procurement process.

Despite all the answers given, the commission went on to re-commit the issues to the internal audit and risk committee.

The audit absolved the secretariat on some of the tenders but hanged them on others.