What you need to know:
- Chiloba argued that the decision to send him on compulsory leave has already subjected him to an untold psychological mental anguish.
- Chiloba also argued that there is no provision in the Human Resources and Administration Policies and Procedures Manual that provide for compulsory leave.
The chief executive officer of the Independent Electoral and Boundaries Commission (IEBC), Mr Ezra Chiloba, was sent on compulsory leave as a result of a protracted battle involving five tenders for last year’s General Election, it has emerged.
In a suit filed by at the Employment and Labour Relations Court on Thursday challenging the decision, Mr Chiloba pointed an accusing finger at IEBC chairman Wafula Chebukati for allegedly orchestrating his removal.
Although he has sued Mr Chebukati, IEBC Vice-Chairperson Consolata Maina and commissioners Abdi Guliye, Boya Mulu, Margaret Mwachanya, Paul Kurgat and the commission, Mr Chiloba through his lawyer Andrew Wandabwa, argues that it all boils down to his differences with Mr Chebukati.
In his affidavit, Mr Chiloba claims that he and Mr Chebukati have had differences on issues such as assignment of duties to staff, the procurement of the Kiems kits and ballot papers, in addition to the way last year’s presidential elections were conducted.
“I have all along enjoyed excellent working relations with both the staff of the commission and the commissioners….until around April 2017, when differences of opinion began to emerge between the Secretariat, the chairman and some commissioners,” Mr Chiloba said.
By January, the alleged “bad blood” was over five tenders for the August 8, 2017 General Election and the repeat presidential election on October 26 of the same year.
The tenders were for the provision of the Kenya Integrated Election Management System (Kiems) by OT Morpho, the provision of satellite phones, for the transmission of results the servers from IBM to host the biometric voter register, the hosting of the Kiems database and the provision of communication services by Scanad.
The Kiems contract with OT Morpho was worth $23.8 million (about Sh2.4 billion), while the one for the database cost $2.7 million (Sh270 million) and the one for communication Sh350 million.
The cost for the satellite phones from Airtel and the IBM servers with IBM were not established.
Mr Chiloba avers that when he resumed office this year, Mr Chebukati wrote to him on January 6 detailing the issues he had regarding the five contracts.
On Kiems, Mr Chebukati questioned Mr Chiloba’s failure to provide for a performance security or guarantee.
He also pointed out that, given that the Kiems facilities were not used in some constituencies during the October election, the contract price should have been lower.
Mr Chebukati complained that of the 1,553 Thuraya satellite phones that were supposed to be delivered by Airtel, only 553 were delivered on September 4, almost a month after the election.
The chairman also complained that the servers for the BVR were received after the General Election and asked how IBM would be dealt with in that regard.
On the Oracle database for Kiems, Mr Chebukati expressed concerned about the process and asked Mr Chiloba for the professional opinion that guided him, the notification of the tender award, its approval and the contract.
Mr Chebukati argued that because Scanad was contracted for only four months and the job was worth Sh350 million, there should have been a provision for continued service.
Mr Chiloba replied on February 19, detailing the responses to each issue in a letter also filed in court.
On OT Morpho, he said the contract was signed on September 28, by which time 60 per cent of the job was done, with the French firm terming it a “high risk” venture because they committed had resources without having been paid.
Mr Chiloba said that, had they invoked the need to have a performance guarantee, the contract would have been signed after October 26.
He also backed his assertions with an opinion from the legal directorate.
“In a nutshell, OT Morpho was already performing the contract, to the extent that it was not easy to indemnify the same for purposes of the performance security and that performance continued throughout the period of negotiations,” he said.
Mr Chiloba said Airtel was the only mobile service provider that offered to complement the network with satellite phones, and stated that it would deliver 1,000 phones for the August 8 election.
The additional phones would be used in future elections.
“This being a three-year framework contract, it was still in order to receive the devices even after the August 8 election.
"Indeed, as it stands now, the commission may make extra orders under the same contract if need be.
"In addition, the purchase of the devices must be seen from a long-term perspective,” he added.
On the IBM contract, Mr Chiloba said the company delivered only on some security aspects, and that report had been presented to the commissioners’ plenary meeting.
On October 9, IBM told IEBC it would cancel the contract since it had not been paid.
Mr Chiloba said the contract with Oracle was okay and the documentation backing it available and IEBC has paid $800,000 and has a balance of $1.8 million to pay.
The CEO said the contract with Scanad for communication and media advertising was for four months and had been approved by the plenary and was based on a negotiation after the company tied with Transcend Media Group during the bidding.
On April 6 when the decision to send him on compulsory leave was made, Mr Chiloba alongside his deputy Hussein Marjan were asked to leave a meeting attended by all the mentioned commissioners.
He alleged that he was then issued with a memo indicating that the commission had reached that decision.
Mr Chiloba argued that the decision has already subjected him to an untold psychological mental anguish and that his reputation has been unjustifiably tainted.
He argued that an IEBC’s internal audit report did not even have any adverse findings against him or any of the commissioners to justify the decision to send him on compulsory leave.
While faulting Prof Guliye, Mr Chebukati and Mr Molu, Mr Chiloba also argued that he was not accorded an opportunity to defend himself and that there is no provision in the Human Resources and Administration Policies and Procedures Manual that provide for compulsory leave.
“I am further aggrieved by the impugned decision because it has created the erroneous impression that I am the subject of investigations or that my conduct as Chief Accounting Officer in the procurement of material during the 2017 General and Fresh Presidential elections, either expressly or by implication and/or by way of innuendo,” he said.
He therefore wants the sued parties barred from implementing the purported decision to send him on compulsory leave, which was made on April 6 as indicated in an IEBC’s internal memo.
He also wants the sued parties barred from hindering him from carrying out his functions as well as subjecting him to any form of victimization or professional dishonour.
Mr Chiloba claimed that Prof Guliye had hinted to him while he was on leave in December last year that the IEBC chair was ‘determined to get him out’.
He says that Prof Guliye advised him to extend his leave as the matter is sorted out but he refused.