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Ezra Chiloba opens Pandora’s box on poll ruling

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By PATRICK LANG’AT
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On September 1, 2017, in a 4-2 majority decision, the Supreme Court annulled President Uhuru Kenyatta’s election, terming it “invalid, null and void” and sending shock waves across the country.

But for the Independent Electoral and Boundaries Commission (IEBC), it has now emerged, their case had been lost even before the six-judge bench retreated to write their judgment on August 29 following a two-day marathon hearing.

“Based on our own observation, you had a feeling that something wrong was going to happen; from the questions the judges were asking, you got a sense that it was a lost cause,” IEBC chief executive Ezra Chiloba told the Nation in an interview.

Mr Chiloba spoke just a few days before the IEBC embarked on a post-election evaluation forum in Nairobi, which ended Thursday, and where the conduct of the annulled poll, and the repeat election in October, were analysed by experts, the civil society, and election observers.

In reflecting on the landmark ruling — the first in Africa, and only the fourth in the world — Mr Chiloba argues that right from the start the Supreme Court had gone out of their way to find fault with how they had conducted the election.

“When you are presiding over such a dispute, you must give the benefit of doubt to the institutions that people have set for themselves — and given delegated power — that they will do the right thing. In this case, we saw an approach of ‘IEBC has done something wrong, let us go and find out what,'” Mr Chiloba said.

Mr Chiloba also revisited the results of the scrutiny ordered by the Supreme Court, and which sampled 4,299 Forms 34As from five counties — an analysis Mr Chiloba told investigators in October last year were in ‘sharp contrast’ with what the commission had presented.

Out of those, the scrutiny showed that 481 of them were carbon copies but signed with another 157 not signed, 269 original copies not signed, with 26 other originals signed, and scanned.

A total of 58 were photocopies of which 46 had not been signed, and 11 had no watermark security feature.

“We believe that the scrutiny of forms led by the registrar of the Supreme Court did not reflect the true nature of the forms as delivered to the court by the commission,” he said of the scrutiny that the petitioners termed as the smoking gun, and which played a huge part in the annulment of the poll.

Mr Chiloba was referring to the requirement in law for the commission to present to the court certified copies of all results declaration forms four days after the filing of a petition, and which he believes the court did not counter-check against what was said in the report.

“We were not given an opportunity to validate the report, or sign off on it when it was handed over to lawyers, who were given 10 minutes to argue on it before court.”

The veracity of the report on the scrutiny of the forms is a matter also broached by Justice Njoki Ndung’u in her dissenting opinion in which she faulted her colleagues who, she said, had not counter-checked the details in the scrutiny report against the forms submitted to the court even before the case started.

Justice Ndung’u checked the forms against the report and, in a detailed report, documented that all the forms in dispute had the security features the scrutiny report had said were lacking.

“By subjecting the integrity of the election to considerations of design, that are neither statutory nor regulatory, the majority has not only threatened the people’s belief in the electoral system, it has overburdened and in fact, negated the electorate‘s right to franchise,” Justice Ndung’u said in her dissenting judgment.

Going forward, Mr Chiloba proposes, a proper framework for scrutiny should be set, with clear roles for the commission, the petitioners, the president-elect, and the court.

In their ruling, Chief Justice David Maraga, his deputy Philomena Mwilu, and Justices Isaac Lenaola and Smokin Wanjala ruled that the commission had failed to follow the law, and its process of results transmission was “jumbled up” — one that CJ Maraga in an interview last month said lacked transparency.

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In analysing the issue of results transmission, the Supreme Court narrowed down on 11,000 polling stations, some of them in Kiambu, Murang’a, Kisumu Town, and other places that generally have good network, and which the IEBC said could not transmit their results forms because of lack of network.

“It is common knowledge that most parts of those counties have fairly good road network infrastructure.

“Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the presiding officers to travel to vantage points from where they would electronically transmit the results,” the judges ruled, terming the failure an “inexcusable contravention”. This indictment, Mr Chiloba believes, was erroneous.

At the time of declaring the final result, he said, “IEBC had received all the forms, and were in custody of various returning officers since the Maina Kiai case at the Court of Appeal said the commission was everywhere”.

“While all the results forms at the polling stations were transmitted electronically, results at the constituency tallying centre were declared based on all forms from the polling stations,” he said.

“The interpretation by the Court of Appeal in the Maina Kiai case brought in some inconsistencies that led to a confusing jurisprudence where, while the Court of Appeal told us that the chairman of the commission should not verify results at the national tallying centre and the returning officers need not troop there, the Supreme Court was indicting us for not doing what we were told not to attempt to do, without vacating the Court of Appeal’s findings,” Mr Chiloba argues.

In the Maina Kiai case, the Court of Appeal termed it as ‘hypocritical as it is incongruous” for the IEBC chairman to want to verify results already seen by his representatives in the polling stations and constituencies, saying any attempt to “correct, vary, confirm, alter, modify or adjust” was to put on himself an “illegitimate power”.

To buttress his view, Mr Chiloba points to the repeat election where the IEBC required all its returning officers to troop to the national tallying centre, an act he says was in tandem with the first Supreme Court ruling, but appeared to deviate from the Maina Kiai case that he believes played a large part in their first loss.

But while he faulted the top court, Mr Chiloba appeared to take their own share of the blame, saying there was a “lack of coherency in our legal team”, an admission that seems to stem from the fact that many felt the commission either did not explain itself well at the apex court, or seemed like they were wishing away some important aspects of the petition.

In the second petition, IEBC dropped Senior Counsel Paul Muite, law professor PLO Lumumba, for a team led by Waweru Gatonye; and that focused more on showing the court the complexity of the elections, and how IEBC had gone out of its way to hold a credible election.

“The irony is that while the Supreme Court case inspired many petitions at the lower courts, over 90 percent of the over 300 cases have been thrown out, and almost all that succeeded were attributed to the conduct of the candidates themselves, not the commission,” Mr Chiloba said.

In the interview, he also addressed issues of an implosion in the commission that the resignation of Dr Roselyne Akombe in October 2017, and that of commissioners Connie Nkatha, Margaret Mwachanya, and Paul Kurgat — summed up by the embattled chief executive’s publicised disagreements with chairman Wafula Chebukati. And Mr Chiloba does not have straight answer for it.

“The Kriegler commission was right: A commission should not be put in place less than two years to the elections,” Mr Chiloba said, suggesting that the commission unveiled in January 2017, just a few months to the elections, did not have enough time to gel with the secretariat.



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Sordid tale of the bank ‘that would bribe God’

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Bank of Credit and Commerce International. August 1991. [File, Standard]

“This bank would bribe God.” These words of a former employee of the disgraced Bank of Credit and Commerce International (BCCI) sum up one of the most rotten global financial institutions.
BCCI pitched itself as a top bank for the Third World, but its spectacular collapse would reveal a web of transnational corruption and a playground for dictators, drug lords and terrorists.
It was one of the largest banks cutting across 69 countries and its aftermath would cause despair to innocent depositors, including Kenyans.
BCCI, which had $20 billion (Sh2.1 trillion in today’s exchange rate) assets globally, was revealed to have lost more than its entire capital.
The bank was founded in 1972 by the crafty Pakistani banker Agha Hasan Abedi.
He was loved in his homeland for his charitable acts but would go on to break every rule known to God and man.
In 1991, the Bank of England (BoE) froze its assets, citing large-scale fraud running for several years. This would see the bank cease operations in multiple countries. The Luxembourg-based BCCI was 77 per cent owned by the Gulf Emirate of Abu Dhabi.  
BoE investigations had unearthed laundering of drugs money, terrorism financing and the bank boasted of having high-profile customers such as Panama’s former strongman Manual Noriega as customers.
The Standard, quoting “highly placed” sources reported that Abu Dhabi ruler Sheikh Zayed Sultan would act as guarantor to protect the savings of Kenyan depositors.
The bank had five branches countrywide and panic had gripped depositors on the state of their money.
Central Bank of Kenya (CBK) would then move to appoint a manager to oversee the operations of the BCCI operations in Kenya.
It sent statements assuring depositors that their money was safe.
The Standard reported that the Sheikh would be approaching the Kenyan and other regional subsidiaries of the bank to urge them to maintain operations and assure them of his personal support.
It was said that contact between CBK and Abu Dhabi was “likely.”
This came as the British Ambassador to the UAE Graham Burton implored the gulf state to help compensate Britons, and the Indian government also took similar steps.
The collapse of BCCI was, however, not expect to badly hit the Kenyan banking system. This was during the sleazy 1990s when Kenya’s banking system was badly tested. It was the era of high graft and “political banks,” where the institutions fraudulently lent to firms belonging or connected to politicians, who were sometimes also shareholders.
And even though the impact was expected to be minimal, it was projected that a significant number of depositors would transfer funds from Asian and Arab banks to other local institutions.
“Confidence in Arab banking has taken a serious knock,” the “highly placed” source told The Standard.
BCCI didn’t go down without a fight. It accused the British government of a conspiracy to bring down the Pakistani-run bank.  The Sheikh was said to be furious and would later engage in a protracted legal battle with the British.
“It looks to us like a Western plot to eliminate a successful Muslim-run Third World Bank. We know that it often acted unethically. But that is no excuse for putting it out of business, especially as the Sultan of Abu Dhabi had agreed to a restructuring plan,” said a spokesperson for British Asians.
A CBK statement signed by then-Deputy Governor Wanjohi Murithi said it was keenly monitoring affairs of the mother bank and would go to lengths to protect Kenyan depositors.
“In this respect, the CBK has sought and obtained the assurance of the branch’s management that the interests of depositors are not put at risk by the difficulties facing the parent company and that the bank will meet any withdrawal instructions by depositors in the normal course of business,” said Mr Murithi.
CBK added that it had maintained surveillance of the local branch and was satisfied with its solvency and liquidity.
This was meant to stop Kenyans from making panic withdrawals.
For instance, armed policemen would be deployed at the bank’s Nairobi branch on Koinange Street after the bank had announced it would shut its Kenyan operations.
In Britain, thousands of businesses owned by British Asians were on the verge of financial ruin following the closure of BCCI.
Their firms held almost half of the 120,000 bank accounts registered with BCCI in Britain. 
The African Development Bank was also not spared from this mess, with the bulk of its funds deposited and BCCI and stood to lose every coin.
Criminal culture
In Britain, local authorities from Scotland to the Channel Islands are said to have lost over £100 million (Sh15.2 billion in today’s exchange rate).
The biggest puzzle remained how BCCI was allowed by BoE and other monetary regulation authorities globally to reach such levels of fraudulence.
This was despite the bank being under tight watch owing to the conviction of some of its executives on narcotics laundering charges in the US.
Coast politician, the late Shariff Nassir, would claim that five primary schools in Mombasa lost nearly Sh1 million and appealed to then Education Minister George Saitoti to help recover the savings. Then BoE Governor Robin Leigh-Pemberton condemned it as so deeply immersed in fraud that rescue or recovery – at least in Britain – was out of the question.
“The culture of the bank is criminal,” he said. The bank was revealed to have targeted the Third World and had created several “institutional devices” to promote its operations in developing countries.
These included the Third World Foundation for Social and Economic Studies, a British-registered charity.
“It allowed it to cultivate high-level contacts among international statesmen,” reported The Observer, a British newspaper.
BCCI also arranged an annual Third World lecture and a Third World prize endowment fund of about $10 million (Sh1 billion in today’s exchange rate).
Winners of the annual prize had included Nelson Mandela (1985), sir Bob Geldof (1986) and Archbishop Desmond Tutu (1989).
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Monitor water pumps remotely via your phone

Tracking and monitoring motor vehicles is not new to Kenyans. Competition to install affordable tracking devices is fierce but essential for fleet managers who receive reports online and track vehicles from the comfort of their desk.

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Agricultural Development Corporation Chief Accountant Gerald Karuga on the Spot Over Fraud –

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Gerald Karuga, the acting chief accountant at the Agricultural Development Corporation (ADC), is on the spot over fraud in land dealings.

ADC was established in 1965 through an Act of Parliament Cap 346 to facilitate the land transfer programme from European settlers to locals after Kenya gained independence.

Karuga is under fire for allegedly aiding a former powerful permanent secretary in the KANU era Benjamin Kipkulei to deprive ADC beneficiaries of their land in Naivasha.

Kahawa Tungu understands that the aggrieved parties continue to protest the injustice and are now asking the Ethics and Anti-corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) to probe Karuga.

A source who spoke to Weekly Citizen publication revealed that Managing Director Mohammed Dulle is also involved in the mess at ADC.

Read: Ministry of Agriculture Apologizes After Sending Out Tweets Portraying the President in bad light

Dulle is accused of sidelining a section of staffers in the parastatal.

The sources at ADC intimated that Karuga has been placed strategically at ADC to safeguard interests of many people who acquired the corporations’ land as “donations” from former President Daniel Arap Moi.

Despite working at ADC for many years Karuga has never been transferred, a trend that has raised eyebrows.

“Karuga has worked here for more than 30 years and unlike other senior officers in other parastatals who are transferred after promotion or moved to different ministries, for him, he has stuck here for all these years and we highly suspect that he is aiding people who were dished out with big chunks of land belonging to the corporation in different parts of the country,” said the source.

In the case of Karuga safeguarding Kipkulei’s interests, workers at the parastatals and the victims who claim to have lost their land in Naivasha revealed that during the Moi regime some senior officials used dubious means to register people as beneficiaries of land without their knowledge and later on colluded with rogue land officials at the Ministry of Lands to acquire title deeds in their names instead of those of the benefactors.

Read Also: Galana Kulalu Irrigation Scheme To Undergo Viability Test Before Being Privatised

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“We have information that Karuga has benefitted much from Kipkulei through helping him and this can be proved by the fact that since the matter of the Naivasha land began, he has been seen changing and buying high-end vehicles that many people of his rank in government can’t afford to buy or maintain,” the source added.

“He is even building a big apartment for rent in Ruiru town.”

The wealthy officer is valued at over Sh1.5 billion in prime properties and real estate.

Last month, more than 100 squatters caused scenes in Naivasha after raiding a private firm owned by Kipkulei.

The squatters, who claimed to have lived on the land for more than 40 years, were protesting take over of the land by a private developer who had allegedly bought the land from the former PS.

They pulled down a three-kilometre fence that the private developed had erected.

The squatters claimed that the former PS had not informed them that he had sold the land and that the developer was spraying harmful chemicals on the grass affecting their livestock and homes built on a section of the land.

Read Also: DP Ruto Wants NCPB And Other Agricultural Bodies Merged For Efficiency

Naivasha Deputy County Commissioner Kisilu Mutua later issued a statement warning the squatters against encroaching on Kipkuleir’s land.

“They are illegally invading private land. We shall not allow the rule of the jungle to take root,” warned Mutua.

Meanwhile, a parliamentary committee recently demanded to know identities of 10 faceless people who grabbed 30,350 acres of land belonging to the parastatal, exposing the rot at the corporation.

ADC Chairman Nick Salat, who doubles up as the KANU party Secretary-General, denied knowledge of the individuals and has asked DCI to probe the matter.

Email your news TIPS to [email protected] or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu

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William Ruto eyes Raila Odinga Nyanza backyard

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Deputy President William Ruto will next month take his ‘hustler nation’ campaigns to his main rival, ODM leader Raila Odinga’s Nyanza backyard, in an escalation of the 2022 General Election competition.

Acrimonious fall-out

Development agenda

Won’t bear fruit

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