Issack Hassan: The day I almost sacked Oswago, and how Raila saved him

In the third instalment of our serialization of the memoirs of former Independent Electoral and Boundaries Commission chairman Ahmed Issack Hassan, the truth about some of the decisions the IIEC made comes to the fore. But, as Issack says in Referee of a Dirty, Ugly Game, there was too much for him to learn at the commission, and he did so the hard and painful way. Consider, for instance, the barrage of attacks against him and the commission by the political class, how rogue IIEC worked with outsiders to bring him down, and the role ODM leader Raila Odinga played in the running of the commission

There was much to learn in the course of my work as chairperson of the interim commission, even after being at the helm for over a year. It was only unfortunate that I sometimes had to learn some of the lessons the hard way—through my mistakes.

Around mid-2011, I had an exchange with ODM political leaders over a matter that quickly came into the limelight. The ODM Secretary-General submitted a list of 34 nominated councillors to the commission on 23rd June, 2011, directing that their nomination be revoked and their names replaced. The replacement list accompanied this directive. I was not fully accustomed to how the procedures worked. In a moment of naivety, which I sorely regretted soon afterward, I forwarded the letter as it was, on 30th June, 2011, to the Minister for Local Government at the time, Musalia Mudavadi, to declare the seats vacant and appoint their replacements.

A number of these councillors, who were mainly from the North Rift region, were accused of being allied to William Ruto, the then Minister for Agriculture. Ruto was also the MP for Eldoret North Constituency, and a deputy party leader in ODM alongside Mudavadi. Ruto had made it clear that he was on his way out of ODM. Preparations were underway for him to join the United Democratic Movement (UDM) Party. Some of the councillors in ODM were supporting him in this move. They were swiftly punished by their party leaders for their actions.

It did not take long for me to discover my error. The 34 councillors went to the Registrar of Political Parties, Lucy Ndung’u, and complained bitterly about the unfairness of the move by ODM, which sought to replace them. The Registrar also noticed some irregularities in the submissions ODM had made. I learnt from her that ODM had not followed due process in the removal of the councillors, according to the framework and guidelines laid down for political parties.

Read: The memorable events of 2013

The councillors were not given a hearing, and no disciplinary committee had been involved before their removal. In addition, the Registrar discovered that some of the members nominated to replace the ones being struck off were not active members of ODM. Unfortunately, Mudavadi was by this time already preparing to gazette the new councillors. I was forced to recall the letter I had sent him so that the party could follow the due process on the matter. ODM politicians went all out to lambast me about it.

“Why is he usurping ODM’s legal prerogative? Is he acting at the behest of Ruto and company?” Prof. Nyong’o, ODM’s Secretary-General, inquired.

The commission had unfortunately been caught up and sucked into the ODM party wrangles. I made an additional comment on the matter that further rubbed those allied to ODM the wrong way, stirring up even more trouble for me. In a press conference while recalling the letter, I pointed out that if ODM wanted to degazette the councillors because of disloyalty, it should start with the ‘big fish’ within the party. I stated that unless ODM moved against Ruto and company first, then I would not allow the degazettement of the councillors.

It had been in the public at the time that Ruto was at loggerheads with the ODM Party and its leader, the Prime Minister. My statements thus raised furore among the opposition, which went on for several days as many began suggesting that I was becoming partisan. It was the kind of sticky situation I had to learn from quickly, and from then on, be cautious about ensuring I made informed decisions on matters that came before me.

Miguna Miguna, the adviser of the Prime Minister on coalition matters, went on to publish an article against me on 21st July, 2011 in The Star newspaper, which he wrote for regularly. It was titled IIEC Chair Isaack does not deserve all the plaudits. I had noted that he generally engaged in debates on television with eloquence, and wrote captivating, thought-provoking articles, though I could not figure out why he attacked me so viciously on this particular one.

He also raised concerns over my comments after I recalled the letter I had sent to the Minister for Local Government. He later confirmed in his book, Peeling Back the Mask, that he was acting on the instructions of ODM in writing this particular article.

Miguna accused me of being partisan, pro-status quo, relying on patronage to survive, and even suggested that I was taking credit for the good work done by the IIEC secretariat under James Oswago, the CEO. He further made fun of how I spoke, suggesting that I was deficient in this respect.

It is true that I have a speech impediment in that I stammer, and at times I stumble over my words. In the course of my time at the IIEC, I was advised by Jamila Mohamed, a senior journalist with Citizen TV, to articulate my words slowly to overcome this.

Miguna stated at the end of the article that the views expressed were his own. However, he signed off with his job title, as the adviser to the Prime Minister on coalition affairs. So, I raised a complaint with the Prime Minister. I explained the process of removing the councillors, which ended with their degazettement by the Minister for Local Government. The Prime Minister showed me a letter from the Speaker of the National Assembly, Kenneth Marende. It was a complaint against Miguna’s conduct in government.

This was the second time that Miguna attacked the commission through the media. The first time was in early 2009, before we started recruiting the secretariat. The commission had published some information in the media, which indicated that Kennedy Kihara was the acting CEO then. Without confirming the facts, Miguna launched an attack on IIEC and Kihara, accusing us of setting up the infrastructure of the commission to rig the referendum. I had to issue a statement to state the obvious.

As chairman of IIEC, I often visited the Office of the Prime Minister and engaged with staff there, but for some reason, I never met or talked to Miguna in person. Perhaps because of the Muslim cap he wears, I initially thought he was a Nubian from Kibera, one of the affirmative action recruitments of the Prime Minister.

During his time in the grand coalition, Raila had cemented his reputation as a leader who favoured those from marginalised communities by appointing them to key positions in his office and in the government.

What baffled me, however, was why Miguna was so antagonistic towards me, as evidenced by the vitriol and bile in his writing. The commission’s Communication and Corporate Affairs Manager, Tabitha Mutemi, and the chairman of the Northeastern Province Professionals Forum, Dr. Abdirizak Arale Nunow, both responded to him in subsequent articles.

Read: Chickengate scandal: Former IEBC boss James Oswago fined Sh7.5m or 4 years jail in default

Around this time, the commission received an invitation to travel to the Philippines to study a new electoral system that they had introduced. The International Foundation for Electoral Systems (IFES) funded the five-day trip for a few members of the commission.

Mike Yard, an expert in election administration and technology, was the IFES country director for Kenya at the time. He worked closely with us in the journey to reforms in our electoral process. IFES had been involved in Kenya since 1992, contributing to the evolution of a more independent and stronger electoral management body, and helping to promote cohesive and non-violent elections.

 They assisted with logistical planning, training, voter education and electoral technology. Two days before we travelled, my personal assistant, Noor Awadh, came into my office holding a document. She looked perturbed and visibly shaken. She explained that it had probably been accidentally or unintentionally forwarded to her by Oswago’s personal assistant, Allan Odongo.

“Chairman, you need to have a look at this, this is not good at all,” she said.

After reading through the document, I called (Davis) Chirchir, (Ken) Nyaundi and Winnie (Guchu) and showed it to them. They were adversely mentioned in the email trail. It was a dossier on the IIEC, casting aspersions on the integrity of the commissioners and raising the profile of the CEO as the main person behind the success of the electoral body.

The document alleged that I was employing relatives while Winnie was accused of nepotism, seeking publicity and supposedly controlling me. We decided that we needed to get to the bottom of the matter discreetly. Chirchir and I were preparing to travel to the Philippines.

We agreed to cancel the trip and investigate the matter, so we did not show up at the airport on the day we were to travel. Oswago and three other members of staff we were to travel with probably thought we were running late and would be joining them, so they proceeded to board the plane on the morning of the flight.

We summoned Allan to a meeting so he could explain the contents of the documents we were holding. Though looking shocked, he refused to talk and denied having anything to do with it. He claimed that he was not the source, and that he had no clue where it came from.

The particular article linked to the contents we found in Allan’s computer had been published by a Mr. Boaz Gikonyo in The Star newspaper on 2nd August, 2011, and was titled ‘Tribalism, Nepotism are rife at IIEC’. The commissioners had been perturbed by this article as it seemed to lean towards a smear campaign against us.

Read: Oswago says he was aware of rigging in 2013 elections

We decided to investigate the matter further. This article was among the documents found in Allan’s laptop, word for word. It was a shocking discovery for all of us. I was particularly offended by the allegation of nepotism against me.

Not only was it false, but I had actually removed my brother from the shortlist for the position of the manager, Voter Education, which he was qualified for. This even created bad blood between us, as he complained to my mother.

We found other write-ups in his laptop, which were probably waiting to be published in the newspaper. Allan was adamant and refused to co-operate on the matter. We informed him that we would confiscate his office laptop. We called in staff from the IT, Risk and Compliance department to scan through it. They discovered that he had deleted all the related information from the computer, which only left us with the hard copy we had printed. He tried to defend himself, but we knew he was involved in something sinister.

We decided to carry out a forensic audit on the laptop, which took the staff the whole day. Allan realised he was in deep trouble when the IT team came back in the evening, at about 6pm, with a comprehensive report after retrieving information that had been deleted from the laptop.

They showed us the trail of other articles we had been reading about the commission in the newspapers, particularly those that were written by Boaz Gikonyo. We could see a number of other documents whose source was unknown, including the dates they had been edited, with the trail leading back to Allan. It was unbelievably bizarre that he still denied culpability, even after he was confronted with all the evidence.

Interestingly, Nzibo firmly stood by his side and told us that we could not take any action on him as yet, until we probed the matter further. The commission decided to suspend him on the spot until we could deal with the issue and with his boss. We called for a press conference and disclosed the information we had just discovered that day.

Meanwhile, Oswago found out that we were not on the plane, and thereafter he got wind of what had transpired. He called me while still attending the training sessions in the Philippines. I informed him that we were going to sack him, as we had discovered what he and his PA had been up to.

“Oh no, Chairman, please wait,” he said. “Let me get back, I need to explain this to you.”

In panic, he immediately cut short the trip after the first two days. He was full of apologies when we eventually met. As annoying as it was, he displayed the same traits as his PA—denying any involvement in the dossier we had discovered.

“Please Chairman, it was not me. Please give me a little bit more time to investigate my PA and get to the bottom of this thing,” he begged.

I let him know that the commission was not going to be taken for a ride and that he should just admit he was guilty. Many of the documents we discovered contained detailed information about commission meetings we had convened, with him in attendance. The exact timelines when I adjourned the meetings to attend prayers, or at the end of the day were captured, as well as the discussions we had in the meeting.

There was no way an outsider could have been the source of these details, and I informed him as much. The evidence pointed at him, as there were mentions of particular conversations by the commissioners.

The commissioners were also fed up, and they were in agreement that he should be sacked, though three of them were still against it. These were Nzibo, (Simiyu Abuid) Wasike and (Douglas)Mwashigadi. Nzibo was a former civil servant, and his wife, Dr. Sally Kosgei, was the ODM Member of Parliament for Aldai Constituency, and a minister in the coalition government.

As part of the needful strategic considerations in a coalition government, I called the Permanent Secretary to the Prime Minister, Dr. Mohammed Isahakiah, to let him know that we were about to sack Oswago. He advised that I should first see the Prime Minister before proceeding with this decision, and I made an appointment to meet him.

The PA to the Prime Minister, Major Idriss Abdirahman, also reached out to me and told me to be cautious on the matter. The concern of the two was that Oswago was the only ‘Luo’ face in the top leadership of the commission. When I finally had the Prime Minister’s audience, I went straight to the point.

“Prime Minister, we have evidence against Oswago and his PA. They have been leaking information to the media, and the commission has decided to sack him,” I said, as I displayed the documents before him. The Prime Minister seemed to be in deep thought. He stood up, walked to the window of his office, and looked outside.

“This is very bad, Chairman, very bad,” he said.

He then made a request that the commission should allow Oswago to stay and not sack him, insisting that he would talk to him. He pointed out that it would be good for him as the Prime Minister if Oswago stayed. He reminded me that the commission needed the support of his office.

Being in a coalition government meant that the two coalition partners would be critical in the formation of IEBC, which would take over after IIEC’s two-year term came to an end in November 2011. It was clear from the Constitution that the President would appoint the new commissioners in consultation with the Prime Minister.

Since I was scheduled to travel to Mombasa for a couple of days, I finalised booking for the flight and travelled on the morning the commission meeting was to happen. The IIEC only had a de facto vice chair at the time, so in my absence and that of a vice, no meeting could be convened.

I knew that the blazing tempers against Oswago among the commissioners would have subsided by the following week. Gladys was deeply disappointed by this decision. She told me that I had lost a golden opportunity to sack Oswago while the iron was still hot. She had also hoped to take up the CEO position.

Official laptop

Eventually, we confiscated Oswago’s official laptop and sent him on administrative leave for two weeks as we conducted a forensic audit. We gave the laptop to our staff, who did the same audit as they had on Allan’s machine. It was not a surprise when they retrieved the exact documents and details found in Allan’s laptop, though he had also deleted them.

 It was a terribly disconcerting discovery of all the malicious articles against us that we had been reading in the newspapers. The agenda was to paint me and the commission in negative light. This further deepened the wedge in our interactions, as we could no longer trust Oswago. He had perfected the art of gaslighting. He persisted in denying any claim that had been raised against him.

We decided to hand over Oswago’s laptop to the Kenya Anti-Corruption Commission (KACC) whose director at the time was Patrick Lumumba, for a second forensic audit. KACC would be disbanded in September of the same year, 2011, and replaced by the Ethics and Anti-Corruption Commission (EACC).

In his written response, Lumumba stated that KACC had found nothing incriminating in the laptop, which was rather unfortunate. We realised that we would make very little headway on the matter, given the response, and agreed to deal with it after being confirmed as commissioners of the IEBC.

We were all hopeful then that the Constitution would be adhered to, which meant there was a high likelihood that the commissioners would retain their jobs. The Constitution gave the IEBC commissioners the prerogative of retaining or discarding the secretariat upon being appointed.

Oswago seemed aware that his time at the commission was limited, and knew the incoming commissioners would determine his fate. Interestingly, the leaked dossiers to the media ceased after the culprits were found.

In the course of our preparations for the transition, I received a call informing me that my mother had travelled from upcountry and was in the city. I sent for her to be picked and taken home, while wondering what would have caused her abrupt, surprise trip to Nairobi. Later that evening, as we talked over dinner, I sought to know if she was well and if everything was okay.

“I came all the way to tell you not to apply for the new job,” she said. That was unexpected. I had not seen it coming. I inquired further about why she thought I should not proceed to apply for the IEBC position.

“You have done a good job with this first assignment, and now you should just walk away and go back to what you were engaged in earlier. I have been told that there is a Luo man called Raila who is opposed to you and does not want you to take it up.”  I could tell that she had probably heard many versions of the opposition I was facing.

“Okay, I hear you,” I said. “Here is what I will do. I will personally go and see the Prime Minister and ask him if I have his support in applying for the position of the chairperson of IEBC. I will not submit my application if I do not have his support, but if I do, then I will pursue it.”

“That’s okay,” she responded. “In that case, I will stay and wait to hear what he says.” My response seemed to have partly calmed her fears, though I could tell she was still not comfortable with the idea. The next day saw me at Muthaura’s office to hear him on the matter.

“It is obvious by now that the full transition of IIEC commissioners to the IEBC team may not happen as earlier expected,” I said. “In fact, the positions of the chairperson and commissioners of the new commission will be advertised. What is the President’s position with regard to the IIEC commissioners?”

“I can assure you that you have the President’s full support to proceed in forming the IEBC,” he said. “He has always known that you will simply transition as a team to the new commission. I’m sure he will be surprised to hear that the positions are being readvertised. You mean that is actually what will happen?”

“Yes, that is exactly what will happen a few days from now,” I said.

“Don’t worry about the President, you have his full support. What you need to do, however, is get to that office and talk to the Prime Minister to hear his mind on the matter,” he said, as he pointed in the direction of the BP Shell Annex, where the Office of the Prime Minister was hosted at the time.

The Prime Minister’s Office was my next stop. I had learnt by now that having qualifications alone was not enough, and that one had to meander through the political maze. I shared what was on my mind with Dr. Isahakiah, when I told him that I needed to see the Prime Minister. Once I got into his office, I explained the transition process of the IIEC to IEBC, and my desire to see continuity.

“Prime Minister, I need your confirmation on this matter. Please look me in the eye and tell me whether you have confidence in me, as I apply for the position of IEBC chairperson.”

“I have no problem with you, Chairman. But the commissioners will not be coming back.” I was relieved and distraught in equal measure by his response.

“There are some commissioners who have done a good job, they have executed their responsibilities really well within the two-year term,” I countered, desperately grasping for blades of hope on the matter. He mumbled something that indicated to me his reluctance to support them. “I’m sorry,” he said, as he shook his head with finality.

I left his office a dejected man. The fate of the IIEC commissioners was sealed. I had hoped that some commissioners would be retained to avoid starting from scratch with a new team, given the short time we would have to prepare for the General Election. However, the Prime Minister’s remarks crushed any such hope and left me to deal with the fragments of my new reality.

It was clear to me that ODM political leaders desperately wanted to retain Oswago in the commission. They understood that retaining IIEC commissioners was detrimental to their quest.

It had also become clear to us that Oswago was not carrying out his work effectively. Further, he was not keen on having supervision or oversight by the commissioners. He was politically connected to ODM, and we had confirmed that he was the source of the leaked dossiers to the media. And frankly, Gladys was doing a better job than him. The IEBC Act gave the commissioners the leeway to retain the secretariat, though it also gave them room to make any changes they deemed fit.

Though the Prime Minister had personally assured me of his support, I did not want to have any illusions on the matter. This would only have served to nourish my hopes and cause me to overlook the realities. It was obvious that ODM political leaders would go all out to ensure there was no further progress for me on becoming the chairperson of IEBC. I firmly believed they had scores to settle with me.

Miguna, who had served as the adviser, coalition affairs, in the Office of the Prime Minister, together with other ODM politicians like Prof. Nyong’o, maximised the media platforms to write negative articles about me. Midiwo and others always found choice words for me whenever an opportunity arose. Even with the Prime Minister’s assurance, I still felt that there was a disconnect between him and his lieutenants on the matter, as all the rank and file in his camp had their guns blazing in my direction.

There was overwhelming support, however, from many Kenyans across the country after a successful referendum, to have me lead the IEBC. I was informed later by Oswago that the Prime Minister took offence after I asked him to “look me in the eye” when asking him to confirm if he had confidence in me. He told me the Prime Minister asked why I had framed my question to him as I did, and whether I would have said the same thing to the President. It had not occurred to me that this had been offensive.

I shared the details of the day and the conversations I had with Muthaura and the Prime Minister with my mother, as we were having dinner that evening.

“I have a lot of support from many leaders, and a large number of Kenyans across the country,” I said. “Many of them have been urging me to complete the good job achieved in the referendum by guiding the country through the upcoming General Election. I personally feel that I need to go through with it as well, in my service to the nation.”

Her fears seemed to have been somewhat allayed by what I told her, though I could see she was still not fully convinced that I should apply for the job. Either way, she accepted to let the matter be, and prepared to return home the following day.

In August 2011, the Law Society of Kenya (LSK) held its annual conference in the coastal city of Mombasa. I attended it in my capacity as a member of the legal fraternity. However, as the chairperson of IIEC, I had been requested to give a speech on integrity in elections, given that preparations for the 2013 General Election were already underway. The speech was well received. Later in the evening, as the participants were winding down the day at the Wakili bar, Fred Athuok, my former partner in the legal firm approached me.

“Chairman, it appears that you have impressed a lot of lawyers, and your speech today was remarkable,” he said. “There seems to be an informal agreement that you should be the chairperson of the IEBC. I don’t think anyone in the legal fraternity is going to challenge you for the position.”

I wanted to believe him, but I had experienced too much negativity already, and did not want to hang on to false hope, so I simply appreciated his comment. Appointments to sensitive positions in Kenya, particularly in such matters as elections, had proved to be extremely emotive.

One of the newspaper articles rightly pointed out that the political class always sought to have ‘user friendly’ members in the electoral commission, so I knew there was no telling where the stakes would fall.

Athuok was later proved right, to my surprise, when I realised that no qualified legal practitioner applied for the position when the list of shortlisted applicants was published. Further, not only did I feel that I had the overwhelming support from a majority of Kenyans, I also knew the international community and ambassadors representing the diplomatic missions in Kenya, whom we had worked with over the two years, backed my candidature.

The participation of the international community at this time was highly valued, particularly because of the critical role their presence had played in pulling Kenya back from the brink of anarchy after the 2007 General Election.

The most significant were the intervention by Kofi Annan, which led to a power-sharing agreement in a coalition government, and the indictment of the ‘Ocampo Six’ by the International Criminal Court (ICC). Kenyans had such deep respect and admiration for Annan that he was even referred to as the ‘third principal’. It was evident at the time, that if you had the backing of the international community, Kenyans also threw their support behind you.

ODM troops

My continued engagement with the diplomats and staff working in their institutions allowed me to grow my networks. I reached out to one of them, Murathe Kinuthia, who worked in the UK’s Department for International Development (DFID) in Kenya.

I explained to him what I felt was incessant, misplaced hatred from politicians, especially those allied to ODM, as we came to the end of our two-year term. He invited me to a function that was hosted at the new British High Commission facility in Kenya at the Crowne Plaza, where it had moved to from Bruce House.

On arrival, I found Murathe with another gentleman, who handed me his business card. It was labelled ‘political officer’ which is sometimes said to be a coded phrase for intelligence personnel. He mentioned that Murathe had told him about my woes with the ODM troops. I concurred and disclosed what had been going on, with all the mudslinging and the unsavoury articles that were flooding the newspapers almost daily.

Raila, at the time, was returning to Kenya after a trip to the US. He was passing through the UK to meet Prime Minister David Cameron. The gentleman let me know in the course of our discussion that Raila would have a meeting with UK government officials during his visit. He commented that they would see what they could do to help.

The US Ambassador, Ranneberger, the UK high commissioner, the African diplomatic corps, the head of the European Union delegation in Kenya, as well as other diplomats, also assured me of their support in a press statement. The importance of the international community, their soft power, and the faith that Kenyans had in them at the time, made it necessary to seek their support.

It was a great rubber-stamp of their confidence in me. However, it simultaneously came with the weight of responsibility that rode on such trust and confidence. It was a sobering reminder that I needed to keep upholding what was right in the execution of my duties.

As the IIEC term was winding up, I reflected back on the time we had been in office. It allowed me to understand in a whole new way the delicate balance that was required to handle both the internal challenges of heading such an institution, and the external forces that almost always threatened to crush us or usurp our independence.

Tomorrow: Issack Hassan remembers the evening he decided he would announce the winner of the 2013 presidential election, the calls he made to Uhuru Kenyatta and Raila Odinga, and the different reactions he received from the two. Those two calls, and the announcement the next day, were perhaps the hallmark of his reign at the commission, and they would come back to haunt him days later