Former IEBC boss, deputy jailed over Sh1.3b tender scam in 2013

According to the magistrate, the two former IEBC officials were at the centre of procuring electoral materials and that it is their decisions that made the integrity of the 2013 elections questionable.

Kombo ruled that had Oswago and Shollei been diligent in their duties, some of the disputed materials procured at the last minute before the election could have not been contested at the Supreme Court.

He, however, ruled that since the two are first offenders and given that no public funds were lost during the procurement process, Oswago and Shollei can gain their freedom by paying a fine of Sh7.5 million each.

"I have considered the many challenges faced in the election process and that managing election is a delicate matter that must be handled with care. They can get a non-custodial sentence by paying the option of a fine of Sh7.5 million each," ruled Kombo.

The magistrate found Oswago and Shollei guilty of failing to ensure that changes made to the contract awarded to Face Technologies Limited for the supply of Electronic Voter Identification Devices (Evid) for the elections were approved by the commission.

He also found them guilty of the second count of willfully failing to follow procurement regulations and rules in awarding the Sh1.3 billion to Face Technologies Limited.

Kombo ruled that the two were aware that the equipment supplied were substandard but that Shollei went ahead to prepare approval documents which was presented by Oswago to the IEBC plenary.

"The entire procurement process was littered with irregularities since their failure to ensure that the electoral materials met the required threshold was deliberate. The court has no option but to convict them on the two counts," ruled Kombo.

Former IEBC CEO James Oswago and deputy commission secretary Wilson Shollei at Milimani Law Courts in 2014. [Fidelis Kabunyi, Standard]

The magistrate had however acquitted the two of the charge of abuse of office where they were accused of improperly using their offices to confer a benefit of Sh1,397,724,925 to Face Technologies for supply of the electronic gadgets without ascertaining if the devices met the technical specifications in the contract.

The charges were as a result of recommendation by the Supreme Court in April 2013 after the conclusion of a petition by former Prime Minister Raila Odinga which challenged the election of former President Uhuru Kenyatta.

Although the then Chief Justice Willy Mutunga, judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Jacton Ojwang and Philip Tunoi dismissed Raila's petition, they found that there were some illegalities in the IEBC procurement process that almost compromised the election.

The judges ordered investigation and prosecution of electoral commission officials who were involved in impropriety during the procurement of electronic elections equipment for use in the disputed polls.

According to the judges, it was likely that the procurement of the electronic systems was marked by competing interests involving impropriety or even criminality at the electoral commission.

Following the apex court recommendations, the Ethics and Anti-Corruption Commission took up investigations and in October 2013 arrested and charged Oswago, Shollei, former IEBC director of Finance Edward Kenga Karisa and procurement manager Willy Gachanja Kamanga.

However, Karisa and Kamanga were acquitted in May last year when the magistrate ruled that they had no case to answer.

The magistrate concluded the failure by Oswago and Shollei were deliberate since they knew the equipments had not been subjected to tests and verifications.