Former IEBC CEO James Oswago is set to appeal his conviction in a Sh1.3 billion tender scandal involving the supply of voter materials for the 2013 general election. This week, Oswago will challenge the decision at the Court of Appeal after the High Court upheld his conviction and four-year sentence for his role in the irregular award of the tender.
Last week, Justice Nixon Sifuna of the High Court in Nairobi confirmed the conviction of Oswago and former IEBC deputy secretary Wilson Shollei. The two were found guilty of willfully failing to comply with procurement laws related to the contract awarded to Face Technologies Limited.
The pair faced two charges: failing to ensure that changes made to the contract for the supply of Electronic Voter Identification Devices (EVIDs) were approved by the IEBC tender committee, and improperly approving a payment of over Sh1.39 billion to Face Technologies without confirming the devices met the contract’s technical specifications.
In his ruling, Justice Sifuna upheld the convictions, stating that the prosecution had proven its case beyond a reasonable doubt. He also found the sentences—four years in prison or a fine of Sh7.5 million—were appropriate and not excessive.
Oswago has since paid the fine but is now appealing the judgment, arguing that it sets a dangerous precedent for holding CEOs criminally liable for the actions or failures of their subordinates. He maintains that his role as CEO did not include inspecting the materials delivered by Face Technologies, but rather ensuring an independent inspection committee was established to carry out the checks. Oswago argues the failure to inspect the materials properly was not his fault.
“I’m challenging this judgment because it could set a precedent where CEOs are held criminally responsible for administrative errors made by their juniors,” Oswago said. “My fight is for other accounting officers who could be unfairly held accountable for the actions of others.”
Oswago also contends that the IEBC did not suffer any financial loss from the contract. He cited a statement from then-IEBC Chairman Issack Hassan, who testified in court that the commission received a Mercedes Benz for the price of a Toyota as part of the deal, calling it “the best business ever.”
Oswago pointed out that members of the tender inspection committee, who were responsible for inspecting the devices, testified that he was not involved in the process and absolved him of any wrongdoing. Despite this, he was convicted.
The disputed tender involved the supply of hand-held devices for the 2013 elections, but after consultations, the IEBC changed the specifications to laptop-based solutions in January 2013. Oswago argues that no crime was committed and is asking the Court of Appeal to overturn his conviction in the interest of justice, public accountability, and the future integrity of the IEBC.
