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Former IEBC CEO James Oswego (l) accompanied by his lawyer Jotham Arua leave Ethics and Anti-Corruption Commission (EACC) Head Office in Nairobi on Friday 26/02/16 after being grilled over the IEBC tender. PHOTO: BONIFACE OKENDO
NAIROBI: The writing is on the wall. Resolve the ‘Kenyan chapter’ of the Chickengate scandal now or risk another round of post-election violence in 2017. This is the verdict contained in expert affidavits tabled in a United Kingdom court.

Two expert witnesses who swore affidavits ahead of the sentencing of UK culprits last month said the stain on top officials of the Independent Electoral and Boundaries Commission (IEBC) may herald a sense of “political impotence” among political actors in 2017.

Anti-graft czar John Githongo and Nicholas Cheeseman, a professor of African Studies at Oxford University, told the UK court that the 2013 elections would have been different had the scandal erupted earlier.

They said public confidence in the electoral commission would have waned to disastrous levels.

Contents of their statements, obtained by The Standard on Sunday, come in the wake of questioning of Trevor Oyombra, the key agent in the bribery scheme, and former IEBC chief executive James Oswago by the Ethics and Anti-Corruption Commission (EACC) on Friday.

IEBC chairman Ahmed Issack, Mr Oswago, former IEBC commissioners Davis Chirchir, Ken Nyaundi, Hamisi Dena and a host of mid-level bureaucrats at the commission have been adversely named in the bribery scam involving inflated printing cost of electoral materials.

CONCLUSIVE FINDINGS

“It increases the likelihood that the Opposition will publicly state that the 2017 elections are not credible before they are held, a development that played an important role in the build-up to civil conflict in 2007/2008. In this way, corruption of the kind perpetrated by Smith and Ouzman Ltd has harmed the prospects for peaceful and orderly elections, with serious implications for the process of democratic consolidation,” Mr Cheeseman’s statement says.

According to Mr Githongo’s statement, the conclusive findings of a UK court that top IEBC officials were bribed further added to the erosion of public trust in the electoral body. He said the finding will increase “political volatility in Kenya and potential for violence”.

“This is the most damaging effect of the Smith & Ouzman saga on the Kenyan electoral system and democracy in general: to further undermine the credibility of an institution whose credibility was already low in the eyes of the majority of Kenyans with potentially deadly implications at election time,” he statement says.

He said the impunity enjoyed by corrupt electoral officials emboldened them to corrupt the 2013 electoral cycle for personal enrichment as well as to affect the outcome of the poll. “It served to sow the seeds for Kenya’s future political instability and undermined confidence in democratic processes. It is not clear to me whether Kenyan public officials and the officials of Smith & Ouzman who engaged in bribery appreciated this or cared,” Githongo added.

Yesterday, Mr Hassan said the commission cannot dictate the pace of investigations by EACC or set timelines. He said the commission had cooperated fully with the investigators and availed all necessary documents.

“I have gone there and recorded my statement. My officers have gone there and virtually everyone mentioned has. It’s now up to them to conclude. My only hope is that they will do a professional job and will not be influenced by the headlines which are sometimes quite unfair,” he said.

In his affidavit, Cheeseman told the court that the Chickengate case had caused “considerable embarrassment” for the electoral commission and will have “serious implications for its future operations”.

He said the massive coverage of the scam in the Kenyan media and the reference of the bribes as “chicken” had further spread the awareness of the scam among the electorate to the point of it becoming “something of a national joke”.

“The evidence that bribes were paid to key electoral officials has not only called into question the efficacy of the 2013 elections – adding further fuel to Opposition claims that the polls were corruptly and incompetently managed – but has also tainted the image of the commission going forward,” he said.

Cheeseman informed the court that in addition to poor performance of IEBC in the last elections, “Chickengate” had been cited by the Opposition in Kenya as one of the main reasons of its drive to remove Issack as chair and to reform IEBC.

WITNESS STATEMENTS

“lndeed, earlier this year (Opposition leader Raila) Odinga publicly named Hassan as one of the most corrupt Kenyans, claiming his name originally appeared on a ‘list of shame’ that was presented to President Kenyatta by EACC. This has had a significant impact on public perceptions of the Commission,” he said.

Although the two witness statements were tabled by UK’s Serious Fraud Office (SFO), the court stayed them after defence of UK suspects objected.

In a decision which has since been criticised by anti-graft campaigners, the judge – Andrew Mitchell – said they were unnecessary as the original trial judge and the UK Judiciary in general recognises the damaging impact of corruption.

“The assumption that the UK Judiciary and courts somehow know how bad corruption is and therefore do not need to hear evidence of the impact and social harm of specific corrupt acts is frankly rather arrogant,” Corruption Watch wrote.

Last month, Judge Mitchell fined Smith & Ouzman Ltd Sh182 million for the scam and confiscated Sh123 million from them. The company and its owners – Christopher Smith and Nicholas Smith, father and son respectively – were convicted in December 2014.

The company will pay the fine over a period of five years in six installments. Although SFO applied to compensate Kenyan public with part of the fine, the judge declined because there had been no formal request from Kenya or evidence of pursuit of recovery from Kenyan authorities.

There was also no evidence that the Kenyan government had sought to recover the sums from the Kenyan officials.

Further, it was uncertain which institution would be given the compensation money. The SFO later announced it was keen to return to the Kenyan public the Sh52 million which was used to bribe the Kenyan suspects.

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Chickengate Independent Electoral and Boundaries Commission (IEBC) Ethics and Anti-Corruption Commission (EACC) James Oswago
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