Preparations for the August 8 elections are firmly back on track after the Court of Appeal gave the go-ahead for a Dubai-based firm to print the presidential ballot papers.
The Al Ghurair Printing and Publishing firm, which has already started delivering ballot papers for other elective seats, will now continue printing the presidential ballot papers after the ruling that marked the collapse of the 18th case against the electoral commission.
Thursday’s decision was a successive victory for the Independent Electoral and Boundaries Commission (IEBC), which had the previous day secured the dismissal of a petition against its electronic elections system.
Taken together, the twin decisions on the printing of the presidential ballot papers and the Kenya Integrated Electronic Management System (KIEMS), which integrates registration and identification of voters as well as results transmission, are critical assurances for the elections scheduled on August 8.
The judges observed that IEBC was justified to resort to direct procurement, explaining that it was impossible to float an open tender for a supplier for the presidential ballot papers and still hold the elections on time.
“A cursory glance and simple arithmetic calculation of the timelines provided for in the procurement regulations demonstrate that if the presidential election is to be held on August 8, 2017, and backward calculations of time lines is done, it is manifest that a procurement method other than direct procurement will not lead to award of tender before the constitutionally ordained date for the conduct of presidential elections,” said the judges.
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They decreed: “For avoidance of doubt, the constitutional date for this year’s General Election is August 8, 2017.”
The dispute revolved around whether President Uhuru Kenyatta had influenced the tender award and whether the public, including the presidential hopefuls, ought to have a say in the choice of the firm to print the papers.
Five appellate judges – Erastus Githinji, Roslyne Nambuye, Otieno Odek, Alnasir Visram, and Jamilla Mohamed – overturned the High Court’s decision that had forced the commission to consider contracting another firm in order to salvage the deadline to August 8.
The 140-page verdict spelt the end of the National Super Alliance’s (NASA) short victory.
The five judges first dismissed the appeal filed by NASA, in which it had asked them to rule on the meeting between Uhuru and Dubai Chamber of Commerce chairman and Al Ghurair Group chairman Majid Saif Al Ghurair.
The Court of Appeal judges, reading the judgment in turns, agreed with the High Court that the opposition party could not use newspaper cuttings to prop its apprehension that the President influenced the awarding process.
NASA, through its lawyers James Orengo, Jackson Awele, and Paul Mwangi, had argued that since presidents’ meetings are not gazetted nor do issues discussed in secret find their way to the public, the only way to prove such meetings was by relying on what was in the media.
The Jubilee Party, through its lawyers Fred Ngatia, Melissa Ngania, and Ahmednasir Abdullahi, opposed NASA’s claims.
The judges agreed with Jubilee that the cuttings could be fake news and thus had no helpful evidence if there was no material to back them up.
“There is no substantive relationship or alleged prior relationship between the President, the Dubai chamber of commerce, and IEBC. The person who alleges must show there is sufficient proof of the special relationship,” the court ruled.
The appellate judges then moved on to the main case, on whether there ought to be public participation in direct procurement, whether the public interest and time limit should have dictated the final verdict of the High Court, and whether the High Court ought to have stuck on only reviewing the decision by IEBC without looking at parties’ constitutional rights.
The five judges also ruled on whether the High Court was correct to split the printing tender into two segments – the presidential one and the other one on the rest of the seats.
They ruled that although public participation is a must in procurement, it does not apply in direct procurement.
The High Court had ruled that IEBC did not carry out sufficient consultations, that it ignored the Thirdway Alliance candidate, Dr Aukuru Aukot, knowing that he was a stakeholder in the August 8 election.
But the Court of Appeal judges observed that the urgency of printing the papers did not require the commission to seek the views of the public and those of political party leaders before deciding its preferred bidder.
The judges also ruled that NASA had not proven that IEBC opted to directly procure the ballot papers in order to lock out other competitors who had expressed an interest.
They ruled: “We have examined the record of appeal and are unable to find any evidence indicating that the intention of the appellant to opt for direct procurement was to avoid competition.”
They found that IEBC could not be blamed for the delay as the process was dogged by a myriad of cases filed before the court.
The bench faulted High Court judges George Odunga, John Mativo, and Joel Ngugi, saying they ought to have considered that if the general procurement law was to be applied in the process, IEBC would not have delivered the ballot papers by August 8.
The Appeal Court also found that the interests of 19 million voters were not considered by the High Court. It ruled that the people need to vote, as required by the Constitution.
“In granting the orders, the learned judges erred and did not take into account the very real threatened of breach of the right of millions of Kenyan voters enshrined in the Constitution, being the right to free, fair and regular elections based on universal suffrage,” the judges ruled.
High Court now okays electronic poll system