Former IEBC chief executive James Oswago is this week moving to the Court of Appeal to challenge his conviction in a Sh1.3 billion tender for the supply of voter materials for the 2013 general election.
Oswago last week suffered a blow after the High Court upheld his conviction and four-year sentence for culpability in the irregular award of the tender.
Justice Nixon Sifuna of the High Court in Nairobi upheld the findings of trial magistrate Felix Kombo who convicted Oswago in December 2022.
Oswago was found guilty alongside former IEBC deputy secretary in charge of support services Wilson Shollei.
The two were convicted on two counts of willful failure to comply with procurement laws.
They allegedly failed to ensure changes made to the contract awarded to Face Technologies Limited by the IEBC for the supply of Electronic Voter Identification in Tender No. IEBC14/2011-2012 were approved by the IEBC tender committee.
In the other count, they were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1,397,724,925.51 for the supply of EVIDs without ascertaining that the devices supplied were inspected and met the technical specifications in the contract.
Justice Sifuna while delivering his judgement on Wednesday last week said he found that the prosecution had proved its case against the duo beyond any reasonable doubt.
“I therefore uphold those convictions,” he said. “As for the sentences, they were not harsh, not too lenient nor illegal. I therefore find no basis or justification for disturbing the sentences as imposed.”
The accused were jailed for four years with an option of a Sh7.5 million fine.
Oswago has since paid the fine.
“I’m challenging this judgment because if it is allowed, it will set a dangerous precedent where CEOs will be held criminally responsible for administrative failures of their subordinates,” Oswago said in an interview on Friday.
The former IEBC chief said his fight in court is for accounting officers whom he feels are placed in a difficult corner by the judgment.
Judge Sifuna said whoever is given responsibility must be accountable and that the higher that responsibility, the higher the accountability. But Oswago feels it is unfair to hold CEOs criminally responsible for omissions of their juniors.
In his case, Oswago was accused of not inspecting the materials that were delivered to the IEBC to confirm they met the standards. He said his work as CEO was to form an inspection committee which he did.
“It is that inspection committee which should inspect the goods once delivered and it works independently of the CEO. The chief executive officer had nothing to do with the inspection for which I was charged,” he said.
It is also Oswago’s case that the IEBC did not lose cash in the tender as many people believe hence he should not be punished.
“Then chairman Issack Hassan was also a witness and he said in court that out of the tender, IEBC got a Mercedes Benz for the price of a Toyota. This was the best business ever and no money was lost,” Oswago said.
He said both the trial magistrate and the High Court judge acknowledged there were glaring failures in the way the 2013 general elections were conducted.
Oswago said members of the tender committee for whom the role of inspection belonged were listed as witness and they absolved him from blame.
“Our warehouse manager at the time owned the failure of not notifying the inspection committee and told the magistrate that he could not call the CEO because I had nothing to do with inspections, yet the court still found me guilty, how?” he asked.
The tender in question involved the supply of hand-held devices for the 2013 elections.
The contract was signed in October 2022.
However, the IEBC, after a marathon two-day meeting with experts changed the goods to laptop-based solutions on January 26, 2013. Oswago wants the Court of Appeal to overturn his conviction saying he committed no crime.
“I am
also appealing for my honour and
integrity and above all public interest and the future of IEBC and other
state agencies,” he said.
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