You did a shoddy job on audit of election devices, IEBC tells anti-graft commission
By STEPHEN MAKABILA | October 27th 2013
IEBC Chairman Isaack Hassan (left) and Chief Executive James Oswago.
By STEPHEN MAKABILA
Nairobi; Kenya: The Independent Electoral and Boundaries Commission (IEBC) has strongly responded to recommendations by the Ethic and Anti-Corruption Commission (EACC) for prosecution of four top officials over alleged procurement malpractice.
The electoral body spent Sh1.3 billion to purchase electronic voter identification devices (EVIDs) that failed during the March 4 elections.
The IEBC views the recommendations to prosecute the four as politically motivated, a product of incompetent investigations, and laced with laziness and ill will.
The commission is also questioning why the Public Procurement Oversight Authority, whose officials have camped at the IEBC offices from March to date, had not raised the red flag over the alleged procurement flaws.
And in the event the four top officials are charged, it has emerged IEBC commissioners, led by chairman Ahmed Issack Hassan, would stand in the dock as witnesses. The process of procuring the EVIDs was passed by the IEBC’s plenary – the highest decision making organ.
The anti-corruption commission last week recommended that IEBC chief executive James Oswago, the deputy commission secretary in charge of support services Wilson Shollei, the director of finance Edward Karisa, and the procurement manager Willy Kamanga be prosecuted.
In a letter to Director of Public Prosecutions Keriako Tobiko, EACC noted the four should be charged with four counts relating to flawed procurement and abuse of office.
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The charges relate to the tender to procure EVIDs which was awarded to a private company, Face Technologies, at a cost of Sh1.3 billion.
Mr Oswago told The Standard on Sunday the total procurement expenditure by the commission stood at Sh30 billion, of which Sh10 billion went to electronic procurements alone (EVID and the biometric voter registration machines).
“What is notable is that the anti-corruption commission is not saying money was lost or someone benefitted. They are working on the assumption that what was bought was defective, but failure of an electronic equipment cannot always be a procurement issue,” he said.
He added: “We accept the gadgets did not work during the March 4 General Election, but no one has asked IEBC why? To us, the failure was due to management, leadership and execution issues.”
Oswago said if they are charged in court, IEBC commissioners would stand as witnesses because they were part of the plenary meeting that approved the entire procurement process.
On his part, Mr Shollei explained that, “I am the one who developed the current anti-corruption Act. How can I violate what I developed?”
Shollei worked with the defunct Kenya Anti-Corruption Commission where he served in various capacities including the office of director of finance and administration. He joined IEBC last year.
He said no ICT expert or procurement professional was part of the anti-corruption commission team that carried out investigations and recommended prosecutions.
“They dispatched quacks who carried out incompetent investigations and the accusations against us are simply baseless. The deal IEBC secured was like getting a Jaguar for the price of a Toyota,” said Shollei.
In the first count, Oswago and Shollei would be charged with jointly and willfully failing to comply with Section 47 of the Public Procurement and Disposal Act and Regulation 31 of the Public Procurement and Disposal Regulations by failing to ensure that changes made to the contract awarded to Face Technologies Ltd by the IEBC for the supply of the EVIDs were approved by the IEBC tender committee.
But the IEBC argues there were no changes made to the contract executed on December 11, 2012 and that any changes to the contract would have been done through an addendum between IEBC and Face Technologies.
The commission says the contract was for the supply of 30,000 devices, which were delivered and paid for.
Further, IEBC notes there were no changes made to the specifications, and that Section 34 of the Public Procurement and Disposal Act, 2005, clearly states that the specifications shall strictly relate to performance rather than design or descriptive characteristics.
The IEBC says it did not order additional or amend the contract to accommodate extra units, but Face Technologies went ahead and supplied on their own volition.
“It is to be noted that the extra 4,600 units supplied by Face Technologies have not yet been paid for,” added Oswago.
In the second charge, the IEBC officials are accused of using their offices improperly to confer a benefit on Face Technologies by approving the payment of Sh1.3 billion for the supply of the devices without ascertaining that they were inspected, accepted and met the technical specifications in the contract.
But IEBC says a pre-shipment inspection done by the Kenya Bureau of Standards appointed agent in China (CCIC) cleared the goods as having met the specifications and standards and gave a certificate of conformity.
It also argues the laptop based solution provided by Face Technologies far much exceeded the commission’s technical specifications, and that Face Technologies was to provide warranty spares for any defective devices. This transferred liability to Face Technologies.
“The commission appointed an acceptance and testing committee to travel to China but could not do so due to competing demands necessitated by elections preparations.
All the 30,000 devices ordered by the commission as per the contract were all delivered and the EVIDs supplied meet the technical specifications as has been demonstrated in the extended elections and by-elections,” Oswago told The Standard on Sunday.
Face Technologies, the IEBC also reveals, has been giving technical support since the last General Election without any further charge on IEBC in the extended elections and various by-elections.
In the third count, Oswago, Shollei, Karisa and Kamanga would be charged with breaking procurement regulations by failing to ensure that the devices were inspected and confirmed as having met the required technical standards.
But IEBC notes the contract was for the supply, delivery, installation, configuration, training, testing and commissioning of electronic voter identification devices, and that the contract was thus for the supply of a solution, not only devices.
“The standing inspection and verification of the commission is not very competent to have undertaken the inspection of EVIDs on delivery at the warehouse because of the technical nature of the goods. In any case there was also other installations to be undertaken by the supplier in conjunction with the commission’s ICT officers which actually took place,” explains Oswago.
He says the laptop based solution demonstrated to the commission and supplied by Face Technologies had far superior technical specifications and that the pre-shipment inspection done by KEBs appointed agents in China cleared the goods as having met the specifications and standards.
In the fourth count, Oswago and Shollei are accused of using their offices improperly to confer a benefit to Face Technologies by approving changes in the contract for the supply of the devices without approval for contract variation by the IEBC tender committee.
But IEBC maintains the 4600 EVIDs were not ordered by the commission and there was no contract or addendum to the contract to incorporate any extra units.
The EACC is still investigating the procurement and management of biometric voter registers, popularly known as BVR kits.
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