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Court quashes parliament decision to ban French security firm, IDEMIA

By Nancy Gitonga
Thursday, April 9th, 2020
Court Hammer
In summary

IDEMIA Identity and Security France SAS, formerly known as OT Morpho has gotten a reprieve after the High Court quashed the MP's decison to ban it from operating in the country for 10 years.

In his judgement Justice John Mativo declared report by public accounts committee amended and adopted the National Assembly on April 23,2019 illegal, null and void for all purposes only to the extent that it purports to retrospectively apply the provisions of sections 974,975,979 of the companies Act , 2015 and section 41 of the public procurement and Asset Disposal Act ,2015 to contracts signed between M/s IDEMIA and IEBC which contracts were signed before the coming into operation of the said provisions.

The report by the National Assembly accounts committee was titled "The Examination of the report of the Auditor General on the Financial statements for the Independent Election and Boundaries Commission for the year Ended June 30,2017, February 2019".

This is after the the firm moved to court last year in May challenging the MP's decision saying that it is a globally reputable firm that stands to suffer reputation and business loses arising from the National Assembly recommendations to the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP).

The National Assembly recommended investigations against IDEMIA for allegedly flouting the Companies Act.

The recommendations, IDEMIA indicates, are against the Fair Administrative Act, as the supposed investigations and subsequent criminal prosecution by the DCI and ODPP are meant to justify a preconceived outcome – which unfair administrative action the Court must curtail.

Through lawyer Wilfred Lusi, IDEMIA acknowledged that it is the worldwide leader in police biometric systems as its biometric algorithms and solutions are used by more than 80 respected police forces around the world including the US’s Federal Bureau of Investigations(FBI), Interpol, Germany’s BKA, and numerous African countries such as Kenya, South Africa, Chad, Botswana or Ethiopia; and Governs its business, across the world including in Kenya, with the highest of standards of ethics and legal compliance.

"By recommending the cancellation of contracts, the National Assembly and PAC fell into error and exercised jurisdiction it did not possess. To that extent, the National Assembly and PAC abrogated to themselves judicial functions which the law has not vested into it, hence, exercising in excess of their jurisdiction,”ruled Justice Mativo.

Idemia first won the Sh4 billion IEBC tender to supply 45,000 Kenya Integrated Election Management System (Kiems) kits used in the 2017 General Election.

The decision by High court is also a relief to the Independent Electoral and Boundaries Commission (IEBC) which had contracted the IDEMIA to run its key elections management system. The five-year contract ends next year.

IDEMIA argued in court that the National Assembly recommendations were based on failure to register locally before doing business in Kenya, a requirement which was not a legal condition at the time it signed its contractual agreement with the IEBC in March 2017.

“The preceding notwithstanding, the Regulations operationalising the requirement for local registration by a foreign company was published by the Registrar of Companies on the 30th of June, 2017, under Legal Notice No 103 of 2017: whereas the subject contract between the IEBC and the ex-parte Applicant had been executed on the 31st of March, 2017: a whole three (3) months prior to the coming effect of this impugned law, and the 1st Respondent’s actions are a most unjust attempt at retrospective – indeed retrogressive – application of an undefined, vague and uncertain law and/or particulars of the law,” says the firm in papers filed in court.

In or around December 15,2016 IEBC invited a one-of-supplier for the hardware component of the Kenya Integrated Electoral Management System (herein after referred to as KIEMS). It requested submission of bids on or before January 9, 2017 and an updated tender was subsequently released on 23/03/2017 requesting for submission on 25/03/2017.

IDEMIA successfully bid for the Tender. It signed a contract with IEBC pursuant to which it supplied the KIEMS Kits to IEBC which were used in the August 82017 General Election and the September 26, 2017 repeat Presidential Election. It is uncontested that IEBC partly paid IDEMIA for the services rendered and part of the sum remains outstanding.

On or about February 18, 2019 IDEMIA was invited by the National Assembly Public Accounts Committee (herein after referred to PAC) to appear before it regarding The Examination of the Report of the Auditor-General on the Financial Statements for the Independent Electoral and Boundaries Commission for the Year Ended 30th June 2017 to respond to issues relating to supply, delivery, installation and testing of the KIEMS Kits and ownership of their company.

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