The electoral commission has appealed against a ruling that nullified the contract for supply of ballot papers.
Though lawyer Anthony Lubulellah, the commission filed an urgent notice of appeal against Justice George Odunga’s decision to quash the Sh2.5 billion contract and wrote to the registrar of High Court to immediately supply them with copies of proceedings to enable them execute the appeal.
“Take notice that the Independent Electoral and Boundaries Commission is dissatisfied with the judgement of Justice Odunga and intends to appeal against the whole decision at the Court of Appeal,” said Lubullelah.
Justice Odunga in his judgment on Monday directed IEBC to start afresh the tender process of procuring ballot papers, election results declaration forms and poll registers.
The dispute over procurement of these key election materials is likely to interfere with the election calendar.
Justice Odunga nullified the contract awarded to Al Ghuraiar Printing and Publishing Company on grounds that the commission was not properly constituted at the time the contract was signed.
He ruled that the court cannot be used as an alter of convenience to authorise an illegal process, and the fact that the public stood to lose funds already paid as commitment fees is not enough reason to allow the contract to proceed.
“The commission cannot be allowed to hide under the pretext of public interest and time constraints in preparing for the elections to engage in acts of illegality. Any public interest that is contrary to the Constitution cannot be allowed to stand otherwise we would be abdicating our duty,” ruled Odunga.
According to the judge, there was already a vacancy for commissioners including the chairman by the time the contract was signed on November 30.
He dismissed claims that IEBC Chief Executive Officer Ezra Chiloba had the mandate to sign the contract, ruling that the CEO as an accounting officer can only prepare tender documents but cannot lawfully sign a contract.
He added that the new electoral laws were put in place to promote transparency, accountability and trust in the election system, and that the commission should have been patient until it is properly constituted before signing the contract.
“To avoid eventuality of disputed elections, the preparation must be done correctly. The tender process should have taken into account the legislative framework, I find that it was unreasonable for the commission to proceed with the contract at that time,” said Odunga.
He added that an illegality cannot be abetted over claims that delay in procuring the materials could lead to election violence like witnessed in 2007, adding that the commission had not provided any evidence to support their claims.