Idemia, a controversial French firm that has been accused of being complicit in past election irregularities in Kenya, is on the verge of clinching a Sh10 billion tender for the supply of a technology platform to run the upcoming constitutional review referendum and the 2022 general election, the Nation has established.
Formerly known as Safran Morpho Limited, and later OT-Morpho, Idemia is the company that was at the centre of the controversial 2017 general election that was nullified by the Supreme Court.
The National Assembly later passed a recommendation barring the company from doing business in Kenya for 10 years "for violating the Companies Act," but the High Court overturned the ban in May this year.
"Following the successful challenge by M/s Idemia of the ban adopted by the Public Accounts Committee at the High Court, and in view of the prevailing constrained fiscal environment, the National Treasury recommends that the commission (IEBC) should continue engagement with the current vendor to support and maintain the Biometric Voter Registration (BVR) technology," reads a brief by the Treasury Cabinet Secretary, Ukur Yatani, greenlighting Idemia's involvement in the upcoming referendum.
The correspondence seen by the Nation is in response to a query by the Independent Electoral and Boundaries Commission (IEBC) on the matter.
Idemia has successively bagged multi-billion shilling tenders under the Jubilee administration.
Besides the polls contracts, it was hired to supply 31,500 biometric kits for the Huduma Namba registration.
In 2017, OT-Morpho provided the IEBC with the Kenya Integrated Elections Management System (KIEMS) that was to be used to verify the voters' list before the election and later authenticate the voters with their fingerprints and photos before being allowed to vote.
The Sh3 billion system was to come with 45,000 tablets to be used in the biometric identification.
The tablets were also ensure secure transmission of the voter turnout data and election results. But on election day, everything that could go wrong went wrong, as the system failed flat. Headquartered in Courbevoie, France, Idemia was also blacklisted in Nigeria, Zambia, Canada.
Idemia did not respond to our queries on the integrity of their systems and the planned involvement in the referendum by the time of going to press.
The Treasury boss, in a phone interview, said his correspondence was only intended to seek the advice of the AG on the way forward after receiving queries from the IEBC.
"We were seeking the legal advice of the AG to know the way forward given the limitations on the budget, we are not the procurement entity for IEBC, so it is up to it to ensure that they follow the law and that the relevant entities such as the EACC and the AG approve it," said Mr Yatani.
Parliament, after an investigation following the 2017 polls debacle, banned Idemia from operating in Kenya for a decade on the grounds that it interfered with the past two elections and violated the Companies Act.
Before the debarment by Parliament, the French firm had been given a five-year contract in 2016 to maintain IEBC's Biometric Voter Registration (BVR) system, which hosts the register of voters. The contract is set to expire next year.
The IEBC now wants to be exempted from the centralised procurement of ICT equipment and services, but the Treasury has shied away from granting this request and passed it on to the Ministry of Information.
In another correspondence to the solicitor general seen by the Nation, the National Treasury is agonising on the way forward and what route to take given the unpopular option of picking Idemia for the job, or having to look for a new supplier for the technology.
The IEBC wrote to the National Treasury on August 12, seeking its advice on how to deal with the dilemma.
Mr Yatani, in the brief, says that given the two options, one being to procure a new supplier of the election technology at Sh10 billion in view of the ban by Parliament on M/s Idemia or paying of Sh277.6 million as pending bills owed to Idemia to clear the way for a new engagement with the firm to support maintenance of the old BVR (biometric voter registration) kits, retaining the company is the lesser of the two evils.
"The Commission is therefore advised to prioritise the payment of the outstanding maintenance costs for the system within the voted provisions in the FY 2020/21 Budget," the brief reads.
The Solicitor General, Mr Kennedy Ogeto, now wants Attorney General Paul Kariuki to advise the IEBC on the advice given by the National Treasury. Should the AG give the deal a clean bill of health, then Idemia will be one step closer to securing the technology contract one more time, without having to go through a competitive tendering process.
Highly placed sources at the Treasury say that once Idemia is allowed back in, kicking them out a year to the election will be an impossible feat given the short time, which is the same reason given in recent elections that the French firm has been involved in.
The IEBC also wants the Treasury to allocate it Sh555.6million annually for the maintenance and audit of election technology, which will give Idemia half a billion shillings every year.
"We note that maintenance and audit of election technology is a priority expenditure to the Commission and as required by law," Mr Yatani says.
The CS asks the IEBC to prioritise allocation to maintenance and audit of election technology during the preparation of the 2021/22 budget and over the medium term.
In the note, the IEBC reveals that it plans to spend Sh33 billion for the 2022 general election in what will make it one of the most expensive elections on the continent. It wants the Treasury to adjust the current budgetary allocation and give it the money in the ratio of 30:50:20. This means that it wants Sh9.9billion this year, Sh16.5billion next year and the remainder of Sh6.6billion to come in 2022, the election year.
But the Treasury says it has not received a funding request for the 2022 general election, including detailed requirements and the corresponding activities for the medium term.
"The Commission is therefore advised to submit detailed itemised requirements for the 2022 general elections, including a breakdown by financial year, for consideration," Mr Yatani says.
The IEBC also wants an additional Sh2 billion to buy land and construct its head office to allow it relocate from the current premises in the Central Business District (CBD) to a secure location.
"The National Treasury has noted the need to have a secure location for the Commission's premises. The commission is however advised to ensure that the project is well prepared and in compliance with the Public Investment Management," Mr Yatani notes.
But he says that in view of the tight fiscal framework, funding for the premises will be considered within the context of the 2021/22 budget process but subject to obtaining the necessary approvals.
Kenyan elections have always been marred by malpractices that the technology was supposed to fix. But in the past two polls, technological failure has been one of the major reasons for post-election conflict, which the planned referendum is supposed to address.
The IEBC also wants the Treasury to allocate Sh3.9 billion for payment of other pending bills on goods and services consumed during the 2017 General Elections.
The Treasury allocated Sh500 million to the agency in the 2018/19 supplementary estimates and a similar amount in 2019/20. It has set aside Sh300 million this year for payment of pending bills for the electoral agency.
"The FY 2020/21 Budget was prepared within a tight fiscal framework, however, the national Treasury will consider the pending bills for the Commission in the context of FY 2020/21 supplementary estimates and also over the medium - term should the revenues improve," The Treasury says in its response to the IEBC.