MPs probe may not get to the bottom of 2013 poll tender mess

PAC will have to be clinical and ruthless in its approach to address the rot at IEBC. The members must undertake contextual research ahead of their meetings with accounting officers lest they continue to be bewildered by off-hand, weak and naïve responses, writes KEN OPALA

Is it another season of futility as the parliamentary watchdog Public Accounts Committee (PAC) attempts to unpack the rot at the Independent Electoral and Boundaries Commission?

From the hearings, not much is likely to come out. The questioning and subsequent answers appear designed to achieve a purpose — cleanse IEBC of guilt.

Indeed, in their presentation to the PAC, former chief executive James Oswago and director for legal and public affairs Praxidise Tororei battled to clear themselves of fault.

They blamed outsiders for the collapse of the biometric voter registration (BVR) machines and poll books and the widely alleged theft in the tendering process. But they hid plenty. Sadly, PAC members failed to smell the coffee as it were.

As the cliché goes, the devil lies in the details. Indeed, little came forth to link IEBC to a subtle, covert plan to frustrate Poll 2013. The commission, either by design or omission, took on a suicidal path saddled with selfish interests in its management of the pre-election process, a Saturday Nation investigation shows.

Tender manipulation, political polarisation (between staff allied to Mr Oswago on one hand and those to chairman Ahmed Issack Hassan on the other), self-interests and tardiness were typical of its operations.

The financial and structural abuse at the IEBC was refined — to award tenders to preferred bidders, both for political and business benefits. The commission allowed politicians to control it, while shrewd businesspeople wedged themselves between its management and the tender committee in a fierce fight for election contracts.

This article trawls through the questions and answers presented at the PAC hearings and brings forth issues that missed out, inadvertently or otherwise, that could be crucial in helping to sort the mess at the IEBC.

UNPERTURBED

As noted above, a cold war between Mr Oswago and Mr Hassan polarised the electoral body. This explains why the competing coalitions (Jubilee and Cord) were unperturbed by the goings-on; they were convinced that their respective interests were being taken care of by the two officials.

No wonder their representatives didn’t attend a pre-election meeting to test the BVR kits.

The government seized the BVR tender process when it became obvious the IEBC couldn’t procure the registers. The process began on February 22, 2012 with an “invitation for bids”.

But by September 22, 2012, the IEBC had not awarded the tender. Inexplicably, the tender evaluation committee took 43 days (from March 26, 2012 to May 7, 2012) to submit its technical and financial evaluations.

Little wonder, the Public Procurement Oversight Authority (PPOA) boss Morris Juma talked about “non-attendance of tender committee meetings by substantive members”, in a letter to Mr Oswago dated July 11, 2012.

However, in her presentation to the PAC, Ms Tororei, who served as the committee chairperson, didn’t explain why her team took inordinately long to complete the tendering process. Incidentally, PAC failed to question her on why the IEBC had been sluggish and tardy.

The delay was created. Officials in the IEBC allowed the process to slog, in a clandestine plan to reap from a prolonged fierce scramble among bidders — in particular a Canadian company (whose local linkman would later be named to the Cabinet), a company associated with a moneyed political operative from Mt Kenya region and a large scale businessman with extensive political connections, an Indian firm and a South African company.

Nearly all these companies were linked to political interests — TNA, URP, ODM, Kanu and PNU — and their vicious battles were being fought at the electoral commission.

SMOKESCREENS

In hindsight, the BVR contract was like a carrot; dangled for many. The tendering committee first chose 4G Identity Solutions (India), which quoted the lowest price. But it hastily rejected its own findings on June 22, 2012 and, after a “re-evaluation”, settled on South Africa-based Face Technologies on July 2, 2012, only to change its mind again and award the deal to Symphony.

Eventually, none of these companies got the tender. The IEBC used some of them as smokescreens.

Interestingly, weeks before 4G Identity Solutions was declared winner, albeit fleetingly, some losing bidders were already aware Face Technologies and/or Symphony would finally clinch the tender and were seeking a partnership. A Canadian bidder discussed with a top IEBC official on possibilities of a partnership. Thus, the tender committee released privileged information to specific bidders.

Be that as it may, the evaluation lacked benchmarks. In a bid to pick a preferred bidder, the IEBC intentionally failed to develop the requisite technical criteria for evaluating the tender. This explains why the committee kept changing goalposts.

Instructively, National Intelligence Service insiders attended tender evaluation meetings.

Ms Tororei, appearing before the PAC, said that “from the re-evaluation, Face Technologies was the preferred bidder and we recommended that it be awarded the tender”. But she knows that her committee ignored reports that this South African company had had problems with fulfilling its obligations in Sierra Leone, Lesotho, Namibia, Uganda and Nigeria.

Thus, IEBC failed to undertake any due diligence on this company.

The two officials further told the MPs that 4G Identity Solutions, which had topped in the evaluation, was disregarded following a damning report by the Kenyan High Commission that linked it to terrorism.

But, according to insiders, the so-called due diligence was a façade, choreographed to blank out this India-based firm. In fact, a team comprising the UNDP had visited the company’s premises and given it a clean bill of health.

WAS A FACADE

Oddly, PAC members failed to inquire why only 4G Solutions was subjected to “due diligence” and not all bidders.

Mr Oswago claimed the India firm suffered after failing to deliver a Sh30 million bribe demanded by some people at the Foreign Affairs ministry. But he failed to mention that the so-called due diligence on the company was a façade — Kenya’s mission in India took just a day to undertake what it termed due diligence on this matter.

According to IEBC insiders, Mr Oswago had written to Kenya High Commissioner in India, through the Foreign Affairs ministry, to carry out due diligence on 4G Solutions. On May 29, 2012, John L. Lanyasunya, the head of Asia and Australasia Directorate in the ministry, wrote to Mr E. M. Barine, Kenya’s High Commissioner to India, to carry out the due diligence. In a day or so, the Kenyan mission allegedly conducted the background check.

Mr Barine wrote back and said the company had been suspended for failure to execute a BVR project in India. “The lack of sensitivity by 4G Identity Solutions to national security is in high breach of trust … the (Kenya High Commission) is of the strong view that Kenya should blacklist the company bearing in mind the challenges facing the country, in particular international terrorism,” he wrote to the Foreign Affairs PS.

On May 31, 2012, Lanyasunya — just three days after directing the investigation — wrote back to IEBC: “The (Kenya High Commission) in New Delhi … has requested us to convey their strong advice that their findings indicate the above mentioned entity (4G Identity Solutions) should not be allowed to enter into any business transaction with any government institution in Kenya. Kindly be advised accordingly.”

The company disputed the report. In a letter to Mr Oswago on July 23, 2012, Dr Sreeni Tripuraneni, its chief executive, produced copies of reports indicating that the firm had not been blacklisted by the Indian authorities as claimed by the Kenyan High Commission.

“We have a strong feeling that (the letter by the Ministry of Foreign Affairs) was written after we refused to compromise on corruption. We would like to bring to your attention that on various occasions, we received telephone calls from people in Kenya High Commission in India and Kenyan Ministry of Foreign Affairs, Nairobi telling us that we needed to pay money to enable them to write a positive letter to IEBC.”

The letter claimed that a Mr R.A. Goenka (Kenya’s consul in India) asked the company to contact an MP from Nyanza to “facilitate the transaction (of a Sh30 million bribe)”. But later, in an interview with the media, the then Foreign Affairs PS disputed the existence of a Mr Goenka as Kenya’s consul in India.

LEGAL MINEFIELDS

Ironically, the Kenyan High Commission’s website says of Goenka thus: “The Government of Kenya appointed Mr R.A. Goenka as its Honorary Consul on 28th October 2003. Mr Goenka, who was born on 15th July 1942, has over thirty years experience in both import and export business ... Mr Goenka has consular jurisdiction over the State of Maharashtra and will be useful to both Kenyan and Indian nationals in this state.”

Mr Oswago knows all about this but he was guarded in his presentation to the PAC.

For her part, Ms Tororei, who was the tender committee chairperson, didn’t explain why she didn’t append her signature to the controversial contract for printing and delivery of ballot papers. Instead, it was signed by her junior, Mr Mahamud Jabane (legal services manager), on the part of the IEBC. This contract, later described by the High Court as “indiscriminate and clandestine”, appeared designed to favour Smith & Ouzman — the company recently made infamous by the so-called Chickengate scandal.

It was full of legal minefields. Based on simple arithmetic, the IEBC required at least 84 million ballot papers (14 million voters, six ballot papers each) for the first round of voting, yet the contract stated “15 million ballot papers” for Sh1,874,592,179 (at the current rate). The contract “is for the supply and delivery of 15 million ballot papers and statutory result forms for the General Election to the commission,” the deal signed between the IEBC and Ouzman on December 11, 2012 stated.

But in a letter to the PPOA, Mr Oswago talked about 108 million ballot papers plus 17 million in case of a run-off.

Interestingly, in a letter of notification to Smith & Ouzman dated December 11, 2012, IEBC hardly mentioned the number of ballot papers but merely stated “supply and delivery of various ballot papers for the General Election”.

PAC members who interrogated Oswago and Tororei appeared unaware that the contract for ballot papers was signed a week ahead of the closure of voter registration — before the number of voters was known. Interestingly, the IEBC was to dispatch names of candidates 49 days later, after the completion of primaries.

The haste was perplexing, for, according to the time-chart proposed by Smith & Ouzman, the printing and production of ballot papers was to commence on January 28, 2013 and the ballots dispatched to Kenya between February 15 and February 22, 2013.

Hardly all; PAC didn’t wonder why the IEBC gave out a letter of acceptance to Smith & Ouzman even before the company presented its bid documents. The letter dated November 9, 2013 was issued three days ahead of the delivery of bid documents.

Again, as in the BVR case, the IEBC failed to conduct due diligence on Smith & Ouzman and its local contacts. (Ouzman failed to deliver during the 2007 election; the ECK was forced to give out part of the project to Kalamazoo to print presidential and MP ballots.)

All said, PAC will have to be clinical and ruthless in its approach to be able to address the rot at the IEBC. The members must undertake contextual research ahead of their meetings with accounting officers lest they continue to be bewildered by the apparent pre-emptive, off-hand, weak and naïve responses cloaked in technical catchwords.

PAC’s subsequent report on the IEBC shouldn’t be used to absolve individuals. They should endeavour to uncover the structural deficiencies that attracted embezzlers to the public purse. Futility shouldn’t be the catchphrase for Kenya’s parliamentary oversight.

Ken Opala is an investigative journalist. [email protected]