Former Independent Electoral and Boundaries Commission (IEBC) officials James Oswago and Wilson Shollei will pay a total of Sh15 million fines or serve four years each in prison, after the High Court dismissed their appeals.
The two former officials had challenged the sentences imposed on them two years ago by a Milimani court, over the procurement of Electronic Voter Identification Devices (Evid) that were used for the 2013 General Election.
Justice Nixon Sifuna dismissed the appeals, saying the procurement of the kits was done in a manner that was neither transparent nor accountable.
“The responsibility for that wrongdoing has to fall on the feet of someone as it constitutes to offence. The offence, therefore, fell on the feet of the appellants as they bore the ultimate responsibility,” said the judge.
The two who were the chief executive officer and deputy director in charge of support services were charged with failure to adhere to procurement laws in the procurement of the devices, which were used in the March 4, 2013 General Election.
They were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1.39 billion for the supply of Evids without ascertaining that devices supplied were inspected, accepted and met the technical specifications in the contract.
Mr Oswago and Mr Shollei were accused of failing to ensure that the changes in the contract for the procurement of the kits were approved by the electoral body tender committee and also failed to inspect the kits to ensure that they met the technical standards defined in the contract.
A Milimani anti-corruption court found them guilty of two counts in December 2022 and fined each of them Sh7.5 million or serve four years imprisonment.
The two former officials had argued that the prosecution did not discharge the burden of proof and the evidence used to convict them was insufficient.
Justice Sifuna, however, after analysing the evidence he was satisfied that the prosecution discharged its burden of proof and proved the case beyond reasonable doubt.
The judge said the responsibility placed on the duo demanded that they uphold high standards of profession ethics and prudent use of resources, selfless service based solely on public interest and honesty.
“This cannot be said of the reckless manner in which the kits were procured. To whom responsibility is given, accountability is expected,” said the judge.
Prof Sifuna said the officials were expected to maintain high level of accountability given that elections are highly charged.
“The procurement should be handled responsibly, transparently diligently and with utmost good faith. The (2013) elections were marked with many complaints, with one of the key issues being the malfunctioning of the kits,” the judge pointed out.
He added that, in ensuing presidential election petition, the Supreme Court had unkind words for the procurer of the kits and recommended investigations against them.
“The totality of evidence put forth by the prosecution vividly demonstrated that the procurement of the kits flouted procurement standards, procedures and rules specified in the Act,” said the judge, adding that the rules and procedures in the procurement are not cosmetic but are meant to cure mischief.
