IEBC Chief Executive Officer Ezra Chiloba. (Wilberforce Okwiri/Standard)
The Independent Electoral and Boundary Commission (IEBC) has rescinded its decision to appeal a ruling that cancelled a Sh2.5 billion tender for ballot paper printing. A full commission meeting held on Thursday last week, resolved to abandon court battles and instead advertise afresh the tender that had been awarded to Dubai based firm.
A member of the commission told The Standard on Saturday that the electoral agency had reviewed the option of an appeal vis a vis complying with Justice George Odunga’s order to re-tender the contract.
On February 13, Justice Odunga nullified the deal by quashing the contract awarded to Al Ghuraiar Printing and Publishing Company on grounds that the commission was not properly constituted at the time the deal was signed.
In his judgment, Justice Odunga directed IEBC to start afresh the tender process for procuring ballot papers, election results declaration forms and poll registers. The IEBC protested the ruling and immediately gave notice of its intention to appeal.
Though lawyer Anthony Lubulellah, the commission filed an urgent notice of appeal and wrote to the Registrar of High Court to immediately supply them with copies of proceedings.
“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.
The notice is set to expire on Tuesday and by yesterday, IEBC lawyers had not filed any documents. “The commission sat and deliberated on the whole case and found that it was only wise to start the exercise afresh. This was informed by an analysis that any court process will only delay the tender further,” a senior IEBC member said.
The source added that the commission’s procurement team has since been directed to prepare documents for fresh advertisement.
Justice Odunga had ruled that the court cannot be used as an altar 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. IEBC commissioners left office in a negotiated settlement following pressure by the opposition which culminated in weeks of street protests.
The judge 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 its claims.