What you need to know:
The 2017 presidential election was the first to be nullified by the courts.
The problem wasn’t just on the day of the election
We look at the good, the bad and the ugly at the electoral commission which led to the 2017 presidential election being nullified and a repeat that was boycotted
Days to Christmas last year, Independent Electoral and Boundaries Commission chairperson Wafula Chebukati instructed Mr Marjan Hussein Marjan, the commission’s then deputy chief executive officer, to hand him a “report” by January 5, 2018. This was the day Marjan’s boss, Mr Ezra Chiloba, was to resume duty from his annual leave.
“Urgently furnish this office with a performance report on ICT-related contracts during the General Election and the Fresh Presidential Election … respectively,” he ordered on December 21, 2017.
Not clear to the public was the reason for the report. But it wasn’t lost on keen observers that Chiloba and Chebukati were entangled in a vicious cold war.
Commissioner Abdi Yakub Guliye would later call Chiloba to his office to inform him that Chebukati might have been trying to unilaterally dig out information about the CEO.
The chairman’s intent, he told Chiloba, was to get rid of him from the IEBC. He urged Chiloba to extend his leave by 30 days to give the commissioners time to sort out the issue.
But Chiloba, shocked by the development, rejected Guliye’s counsel. “I did not believe that I had done anything that warranted such a move,” he would later recall. “I further informed (Guliye) that if the chairman had issues with me I would prefer having a one-on-one meeting to establish the cause of the sore relationship.”
The CEO took the initiative to invite Chebukati to a cup of tea out of the office at which they discussed “at length” the affairs of the commission. Notwithstanding their agreement at this tête-à-tête, however, the chairperson made it clear to Chiloba that he would seek clarification on certain areas of procurement.
Now, in retrospect, Chebukati was seeking Marjan to detail the secretariat’s compliance in awarding key contracts. Based on the report Chebukati ordered an audit into five cornerstone contracts, to establish whether procurement laws, rules, regulations, and guidelines were followed, delivery timelines met, contracts executed accordingly, and their status of compliance.
These multi-billion-shilling contracts were at the centre of the botched presidential election that pitted incumbent President Uhuru Kenyatta and his challenger Raila Odinga.
The preliminary audit tabled in plenary (an assembly of the commissioners) in March 2018 had no pretence — all the contracts in question had a tint of corruption. Some Sh9.2 billion worth of goods and services were procured without requisite tendering, while Sh12.2 billion contracts were not supported by the obligatory performance security bond. A good number of vendors for the requisite technology-related contracts didn’t deliver in time.
All along, Chebukati believed Chiloba committed errors of omission and commission that forced the cancellation of the August 8 presidential vote, for, as the custodian of all commission’s records, he was charged with approving and signing all contracts and ensuring procedural procurement of assets.
That aside, Chebukati was convinced that the CEO was also driving a wedge between the chairperson and fellow commissioners. The dissenting commissioners had in September 2017 thwarted his attempt to suspend Chiloba and three IT staff (James Muhati, Paul Mugo and Boniface Wamae) over the bungled polls.
Thus, the audit findings had now offered him the opportunity to cleanse the commission of what he regarded as the Fifth Column.
The chairperson was on April 8-12, 2018 scheduled to travel to Abuja, Nigeria, to deliver a keynote address on electoral reforms. But he didn’t want to be weighed down by the Chiloba issue during the trip. He directed Chiloba to bring forward the plenary to April 6, 2018.
Chiloba was oblivious to the scheme; that the assembly would eventually seal his fate as Kenya’s chief electoral officer. It discussed his conduct and subsequently slapped him with a three-month suspension. The plenary kicked off a spate of intrigues that culminated in his sacking last October.
But more importantly, the meeting finally lifted the lid off the seething feud within the commission that led to the farcical “resignation” of commissioners Consolata Maina Nkatha, Paul Kibiwott Kurgat and Margaret Mwachanya Wanjala. Commissioners Maina (Chebukati’s deputy at the time) and Kurgat stormed out of this meeting, in solidarity with Chiloba.
IEBC was now openly split right in the middle — between pro-Chiloba commissioners on one hand and Chebukati allies on the other. As will be seen later in this report, the two centres of power had from April 2017 polarised the commission.
Chebukati, Guliye and Molu seized the absence of Kurgat and Ms Maina — and with Chiloba and his Marjan barred — to discuss the audit and ultimately send the CEO packing. The dramatic decision was contained in what Chebukati described as “additional resolutions” in a memo of April 6, 2018 to Marjan, then acting CEO.
The three commissioners were unanimous that Chiloba “be sent on compulsory leave with immediate effect for a period of three months to enable the undertaking of the audit”. They also resolved to widen the audit to include possible administrative lapses by the secretariat. To all and sundry within and outside IEBC, the conduct by Ms Maina and Dr Kurgat was evident of the vast powers Chiloba wielded within the electoral body.
In actual sense, Chiloba was holding his own in the supremacy battle with the chairman. He had ably herded his colleagues against their boss.
Chiloba, in an affidavit he filed in court against the censure, says the suspension “smacks of injustice and unfairness” and was arrived at “without the requisite quorum in terms of the number of commissioners required for the commission to transact business as envisaged” in the law.
When Chebukati was away in Abuja, Nigeria, Chiloba addressed his grievances to Ms Nkatha, often considered the CEO’s top ally at IEBC. He mentioned “procedural gaps” in the suspension — him and his deputy were barred from the plenary; some commissioners opposed the decision.
Ms Nkatha responded, thus: “I take note that the memo by the chairman to you was not copied to the commissioners … Unfortunately, I was not at the meeting where the “additional resolutions” were made. I am made to understand only the chairman and two commissioners were present”. She penned off “with kind regards”.
Implicitly, Chebukati had circumvented the due process. This wasn’t surprising. Chicanery, doublespeak, half-truths and outright lies is always the order of things at the IEBC. Not all plenary resolutions are recorded or implemented, some “resolutions” are sneaked in. At times, commissioners turn around and disclaim resolutions.
Well, with Chiloba suspended, Chebukati now directed the audit department to review all plenary minutes for accuracy as records of deliberations, and their status of implementation. It later emerged that some resolutions were not recorded or signed off even as minutes were missing.
For instance, the secretariat failed to implement key resolutions that could have drastically lowered the cost of the 2017 elections. It curiously overlooked a decision to hire EVIDS (Electronic Voter Identification Devices) and later KIEMS from elsewhere in Africa, and even stonewalled a resolution to have an American agency fund the results transmission system.
Ezra Chiloba Simiyu was employed the IEBC Chief Electoral Officer on January 29, 2015 for a five-year term renewable once. He was to be “accountable to the commission for execution of all programmes and plans in line with the commission’s constitutional and legal mandate”, according to his employment letter. Implicitly, he was to report to the chairman, who at the time was Mr Issack Hassan.
Earlier, he had worked in various organisations, including the UN Development Programme (UNDP) as a programme adviser (2011-2013), Kenya National Commission on Human Rights (KNCHR) and Oxfam.
Significantly, he wasn’t entirely new to matters elections. He had published plenty on the subject. In 2012, while at the UNDP, he published an article on the role of new media and technological platforms in the promotion of free, fair and credible elections.
That he was to report to the chairman, there shouldn’t have been any turf battles between the two. Ideally, Chebukati was the boss. But this wasn’t the case.
Chiloba had built his own power-base over time — before Chebukati and his team arrived at the Anniversary Towers, IEBC’s Headquarters, on January 20, 2017. For close to six months, he was running the show after the exit of the Issack Hassan-led commission.
“When former commissioners technically exited and before they were replaced, Chiloba was at the centre of power, executing the functions of the chairperson, commissioners and the CEO. In short, he was running the commission single-handedly. That made him attractive to the political class,” a top IEBC managers recalls.
He was calling the shots when, between January 2016 and January 2017, evaluation of tenders for election goods and services, was done. The new commissioners found in office a person who already had a stranglehold on the systems in the organisation.
In reality, the new commissioners — greenhorn in matters elections — were chasing after him. Now, not owing allegiance to them, he wasn’t in a hurry to appreciate the new commission.
“It was going to be difficult for the secretariat to owe allegiance to the Chebukati team when it had been appointed by a different set of commissioners,” says Mulle Musau, coordinator of Elections Observer Group (Elog).
Chairperson Wafula Wanyonyi Chebukati was in private legal practice before his appointment. He had a law firm, Cootow & Associates Advocates, and is a specialist in international commerce, trade and investment, environmental law and governance.
He vied for the Saboti Constituency seat in 2007. Chebukati was reportedly an ODM life member, only leaving the party ahead of his appointment to the IEBC.
In the interview for IEBC chairperson, he wasn’t the top candidate. Tukero ole Kina was the highly ranked candidate. Instructively, Ole Kina made statements that may have rattled political operatives: “Elections need not be expensive. I think technology doesn’t fail. It’s the way we approach it that makes it fail. The problem is getting the public to understand the processes and the politicians to accept these processes.”
“It shows that while we could be blaming other things, the current crisis could be about incompetence,” according to lawyer Njonjo Mue who, with Khelef Khalifa (head of Muslims for Human Rights), went to the Supreme Court to challenge the declaration of Mr Uhuru Kenyatta as president-elect in the FPE.
An IEBC insider feels that Chebukati’s lack of experience in public administration exposed itself at the commission, where he couldn’t navigate the rough and tumble. Dr Roselyne Akombe (who resigned as commissioner), evidently Chebukati’s closest ally at the IEBC, once described her boss as a weak leader, indecisive, cornered by colleagues and a flip-flopper. Even in a pedestrian’s eye, Chebukati’s actions betrayed a person in haste to overstep his mandate; to side-sweep aside the protocol.
This streak was evident hardly two months into his job.
In a memo to Chiloba, fellow commissioners and departmental heads on March 13, 2017, Chebukati detailed how correspondences should be handled within IEBC. “Action officers/departments should ensure that feedback to mails marked for them is handled within a maximum of two days. In addition, correspondences requiring chairman’s signature should come on relevant subject files”.
Ideally, this should have been the secretariat’s work. A week earlier he, in a memo, instructed the Director of Legal and Public Affairs to furnish county offices with the legal resources. “Urgently proceed and distribute copies of the compendium on electoral laws to all (constituency election monitors) and (constituency election coordinators) within the week … I expect a written update within seven days of this memo on compliance in respect of distribution of the compendium …”
And on May 30, 2017, Chebukati asked Chiloba to facilitate (suspended IT head) Muhati’s handover “so as not to compromise the operations of the organisation … It appears the officer was sent on compulsory leave without handover of assignments or projects he was undertaking …”
And when Lawy Aura (procurement head) was transferred back to the National Treasury, Chebukati advised Chiloba to replace him with “a trained procurement professional duly licensed to practise by the Kenya Institute of Supplies Management. He or she must be at least at the level of a manager in the organisational structure”. The following day, he asked Chiloba to “urgently ensure that (Aura) undertakes a comprehensive handover upon receiving his letter as per the resolutions of the plenary”.
Implicitly, Chairperson Chebukati had no confidence in his CEO Chiloba and was thus micro-managing the commission.