Court rebukes polls agency for ‘mockery and impunity’

Court proceedings during the ruling of IEBC ballot paper printing tender at the Milimani Law Courts on 7/7/2017. PHOTO BY PIUS CHERUIYOT

NASA was Friday revelling in its success after the Independent Electoral and Boundaries Commission (IEBC) suffered another blow in its preparations for the August 8 General Election.

The electoral commission now has to grapple with the cost implications after the High Court ordered it to source for another firm to print presidential ballot papers.

Friday’s ruling put the commission in an awkward position as it races against time to ensure it delivers a credible election in 30 days’ time.

Judges Joel Ngugi, John Mativo and George Odunga unanimously agreed that the deal between IEBC and Dubai-based printer Al Ghurair Printing and Publishing Limited failed to meet the requirements of the Constitution as the commission did not conduct public participation.

They ruled that since the deal was under a direct procurement process, and there would be no competition. They noted that key players in the elections, including the public, ought to have been involved and informed on each stage of tendering.

They found that the electoral body erred by ignoring the Constitution in the award of the Sh2.5 billion tender to Al Ghurair.

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The judges said IEBC was hiding under the timelines set to have the ballot papers in Kenya to invoke the court’s mercy.

The three judges ruled that nothing would make them rescind the decision to order a repeat of the tender for lack of public participation.

“The respondent was mocking this court with a statement ‘Judiciary mtado’ (what will the Judiciary do) and we find that it cannot act in impunity under the guise of public interest,” the court ruled. “Looking at the efforts by the respondent, we are unable to conclude that IEBC did a meaningful public participation.”

The court only cancelled the tender for the presidential ballot papers and left the Dubai firm to print the papers for county assembly, National Assembly, governors and Senate positions.

Justices Ngugi, Odunga and Mativo ruled that printing of the papers of the other seats should proceed as no challenge had been raised against it.

NASA had filed the case seeking orders to compel IEBC to carry out a fresh tendering and at the same time block the Al Ghurair from participating in the new process.

But the judges did not agree with the party on the firm being blocked from participating in any other tender in Kenya, noting that there was no evidence to show that it had a tainted image or was compromised.

The judges exonerated President Uhuru Kenyatta from allegations that he had a hand in IEBC’s decision to hand the tender to Al Ghurair, saying there was no proof.

Any evidence

They ruled that NASA had not presented evidence to ascertain that the President met with Al Ghurair CEO, adding that newspaper evidence could not be used as the basis of the allegation.

“We have not seen any evidence that there was a meeting between the President and the officials of Al Ghurair. While the application was written as generalised for all the six elections during the arguments, all parties were in agreement there was no challenge before us for the election of governors, senators, MPs and members of the county assembly which will be held simultaneously with the presidential election,” the judges observed.

The judges fleshed out 11 issues which had been raised by the parties.

Before the court was the question on whether IEBC was biased in the process and whether the public ought to have participated in the procurement process.

The judges dismissed the bias question but affirmed that public agencies must come up with frameworks where the public and the stakeholders are consulted when it comes to direct procurement.

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The judges found that although IEBC consulted NASA and Jubilee, it never sought the opinion of presidential aspirant Ekuru Aukot and the others who are vying for the same position.

“IEBC, being a neutral arbiter, ought to consult all candidates and not exempt others,” the judges found. “Public participation is mandatory in direct procurement. National values must govern the procurement process by State bodies and agencies.”

Through lawyer Kamau Karori, IEBC said that if judges don’t give a stay of their judgment, this would affect preparations for the polls. The commission said it has already paid commitment fees to Al Ghurair and a breach of contract will cost tax payers.

Lawyer James Orengo for NASA opposed the application, saying IEBC will not suffer any prejudice. Orengo said there was no urgency since IEBC had said printing for presidential ballots was to begin on July 18.

He argued that Court of Appeal can hear and determine the matter before then without a stay

Attorney General Githu Muigai said the judgment had caused a constitutional crisis which must be urgently determined by the Court of Appeal.

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