The Anti-Corruption Court in Nairobi has sentenced former electoral commission officials James Oswago and Wilson Kiprotich Shollei to four years in prison each for corruption in relation to procurement of Sh1.3 billion voter identification devices in 2013.
The two are the first top officials of the Independent Electoral and Boundaries Commission (IEBC) to be convicted for corruption-related offences.
Chief Magistrate Felix Kombo, however, gave Oswago and Shollei an alternative of paying a fine of Sh7.5 million each.
Meting out the sentences, the magistrate noted that Oswago, who was the CEO and Shollei, the deputy commission secretary in charge of Support Services at the IEBC, were first offenders and had cooperated with the investigators and prosecutors during the court trial.
They were found guilty of two offences of abuse of office and failure to comply with the law relating to procurement of the Electronic Voter Identification Devices (Evid) for the March 4, 2013 General Election.
During the trial that started in October 2013, the prosecution produced 31 witnesses and 108 documents to support its case.
The court found that Oswago and Shollei failed to ensure that the changes made to the contract awarded to Face Technologies Ltd for the supply of Evid were approved by the IEBC’s tender committee.
“The court has considered the challenges associated with elections. But elections must be handled with care. Mr Oswago and Mr Shollei were not faithful to procurement process, leading to a crisis,” said the magistrate.
He ruled that the pair, being officers whose functions concerned the management of public revenue, jointly and willfully failed to comply with the law relating to procurement of goods according to section 47 of the Public Procurement and Disposal Act and Regulation 31 of the Public Procurement and Disposal Regulations.
As a result, some of the Biometric Voter Register (BVR) kits supplied by Face Technologies Ltd were faulty and failed to function on election day in various parts of the country.
“Failure to conduct inspection had consequences to the general election. They would have ensured the kits met all the specifications and the supplier delivered the right quantity and in the right schedule,” the court said.
They also failed to ensure the changes made to the contract awarded to Face Technologies by the electoral commission for the supply of voter identification kits were approved by the tender committee.
The tender documents were altered to reduce the number of the electronic devices from 34,600 to 30,000.
The court noted that the electoral commission did not give approval for amendment or variation of the contract.
The magistrate said it was incumbent upon Oswago and Shollei to advise the commission plenary sitting on the procurement of the devices and any variations would have required amendment of the contract to be approved by the tender committee.
The magistrate said their actions were deliberate and willful offences stating that “both of them had a legal duty to ensure the procurement breaches were not committed”.
They committed the offences in January and February 2013 at IEBC headquarters within Nairobi County.
The court found that the two men had primary responsibility of ensuring tendering was properly followed according to the Public Procurement and Asset Disposal Act. They failed to discharge their special legal accountability, said the magistrate.
In mitigation, the convicts told court to consider that though there were procurement irregularities, no money was lost in the process.
“The election was free, fair and transparent. The 2013 General Election was first of its kind to incorporate technology, six ballot papers and the first under the new Constitution,” said the two in mitigation.
Insisting that they were acting in good faith when the offences arose, they added that both were suffering from lifestyle diseases such as diabetes.