Setback for former IEBC boss Oswago as court upholds jail term

Former Independent and Electoral Boundary Commission chief executive James Oswago suffered a major setback on Wednesday when the High Court declined to quash his four-year jail term.

This is in relation to his involvement in a Sh1.3 billion tender for supplying materials for the 2013 elections.

Justice Nixon Sifuna of the Milimani Anti-Corruption High Court upheld the sentences previously imposed on Oswago and former Deputy Commission Secretary Wilson Shollei.

The court found that they failed to comply with procurement laws when acquiring electronic voter identification devices for the March 4, 2013 polls.

Oswago and Shollei were fined Sh7.5 million for failure to comply with procurement laws. “I find the evidence put forth by the prosecution vividly demonstrated that the procurement of the voter identification kits violated the standards and procedures prescribed in the Procurement Disposal Act,” Sifuna stated.

As the accounting officer, Oswago was primarily responsible for ensuring the IEBC complied with procurement laws. The court emphasized that their actions undermined the integrity of the elections.

“The responsibility for this wrongdoing lies with someone, as this non-compliance constitutes an offence under sections 47 and 48 of the ACECA. The evidence clearly indicates that the capability and criminal culpability fall squarely on these appellants, who bear ultimate responsibility for their actions,” the judge ruled.

Justice Sifuna found that the Office of the Director of Public Prosecutions (DPP) adequately discharged its burden of proof, demonstrating the cases against Oswago and Shollei beyond reasonable doubt.

"I find no justification for disturbing the sentence; thus, this appeal has wholly failed and is dismissed," he ruled.

Oswago took issue with the decision, saying the judge did not take account of the law, which he says provides for Sh1 million fine upon conviction. The former IEBC boss said he would move to the Court of Appeal for a review.

This verdict follows Oswago and Shollei's appeal of the trial court's December 2022 decision, which found them guilty of failing to comply with procurement laws regarding the polls equipment tender. 

They were accused of improperly using their offices to benefit Face Technologies Limited by approving a payment of Sh 1,397,724,925.51 for ballot materials without verifying that they met the necessary technical specifications.

While sentencing, Magistrate Felix Kombo noted that it was incumbent upon Oswago and Shollei to advise the commission on procurement matters, and any contract variations required approval from the tender committee. The court found that they failed to ensure the necessary changes were approved.

“The court has considered the challenges associated with elections. However, elections must be handled with care. Oswago and Shollei were not faithful to the procurement process, leading to a crisis,” the magistrate stated.

In his appeal, Oswago argued that the sentence was too harsh and excessive, urging the judge to quash the conviction and set aside the sentence. 

He claimed that the trial magistrate exceeded her mandate in imposing a fine of Sh 5 million, plus an additional Sh 2.5 million on the two counts, despite the Anti-Corruption and Economic Crimes Act providing for a maximum fine of one million. 

Oswago contended that the magistrate did not provide reasons for the excessive sentence, especially as he was a first offender.

Both Oswago and Shollei further argued that the trial court usurped the DPP's role by framing charges that favored the prosecution's case. "The court played a prosecutorial role by framing charges that favored the DPP case," Oswago told Justice Sifuna.