Judges George Odunga ,Joel Ngugi ,and John Mativo during a court session to give directions on IEBC ballot tender. 7/7/2017 PHOTO BY GEORGE NJUNGE
Preparations for next month’s General Election were yesterday thrown into a spin as the electoral commission ponders on whether it can still hold the exercise as scheduled or throw Kenya into a constitutional crisis.
With exactly 30 days to the August 8 polls, it is practically impossible to announce and award a new tender for the printing of presidential ballot papers as the process normally takes 45 days.
Last evening, the Independent Electoral and Boundaries Commission (IEBC) lawyers led by Fred Ngatia were asking for stay orders so that the High Court could hear the matter given the urgency.
But at this stage, it appears the only route the IEBC can take is to single source the printer, a move that may expose it to further litigation and risk jeopardising the election all together.
The other option for the country is to consider trudging into the landmine filled road of pushing the election date.
While welcoming the ruling, NASA presidential running mate Kalonzo Musyoka said the courts had asserted themselves and built public confidence. Kalonzo was, however, quick to point that the election must still be held as scheduled.
Kalonzo assured the country that all was well and that the onus was with the IEBC to work on the tight timeline.
“Printing is a week long process, so there is no crisis. IEBC should get it right and procure the services afresh,” he said.
Kalonzo’s tone and optimism was not shared by the Jubilee side. Party Secretary General Raphael Tuju said the country was headed for a constitutional crisis.
“The date of the election is likely to shift,” Tuju said, pointing an accusing finger at Chief Justice David Maraga for “allowing the courts to go on the rampage”.
“The Judiciary cannot pretend they do not know the consequences of their ruling. When the constitution is at the threat of violation by the court, where do we go to get retribution? Jubilee is not going to be sacked into this quagmire,” said Tuju.
Still training his guns at the Chief Justice, Tuju said; “If we reach August 8 and there are no elections, will the Chief Justice say he does not bear a responsibility especially given the trends the courts have been setting in the rulings that messed preparations for the polls?”
He said it was up to the courts and IEBC to ensure normalcy is restored in the country.
Jubilee Vice Chairman David Murathe accused the courts and NASA of plotting to stop the elections.
He argued that it was not possible to separate the presidential ballot papers from the rest of the contestants.
“If there was no public participation in the tendering process for the presidential ballots, then it cannot be that the rest can continue,” said Murathe.
The Jubilee Party team said the judgement effectively means that there will be no election because IEBC will have to re-evaluate and award the tender afresh and that cannot be done in 30 days.
“Nothing will stop the elections despite the effort being made by our opponents to derail the process,” said Murathe
IEBC Chairman Wafula Chebukati said he regretted the court’s decision given the urgency to prepare for free, fair and credible elections in the next 30 days.
Chebukati said he was happy that the order by the court was solely based on the reason that there was no public participation during the direct award of the tender to Al Ghurair.
“It is noteworthy that the High Court dismissed most of the allegations against the decision of the commission to award the tender to Al Ghurair. We note that the judgement has far-reaching implications on the elections. As a result, the commission has instructed its advocates to appeal the decision,” he said.
Attorney General Githu Mungai said he had been invited to the court as an interested party and that the decision of whether to appeal or not lies with the IEBC because it was an independent commission.
“It’s unfortunate because the commission had indicated very clearly that they would not be able to make any variations whatsoever because of very tight timelines,” he said.
Suna East MP Junet Mohamed said the other viable option for IEBC is to pick a local firm and award the tender through single sourcing. Those who see awarding a local firm as the best option say this can address the issue of logistics involved in printing and delivery of the ballot papers.
“IEBC had said that it picked Al Ghuarair after several considerations, among them that there are four direct flights from Dubai to Nairobi daily by two major airlines; Kenya Airways and Emirates.This made it easy for delivery and thus printing locally will not raise the issue of transportation, besides also helping in capacity building for local firms,” said Junet.
Yesterday’s ruling by justices George Odunga, Joel Ngugi (presiding) and JJ Mativo not only threw the elections into uncertainty but also put into question the legitimacy of President Uhuru Kenyatta’s term in the event the polls are pushed forward.
According to the constitution, the election of the President shall be held “on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year” as per to Article 136 of the Constitution.
Unlike in the past where there was a quasi-parliamentary system of government, an election could be held any time before the expiry of the term of Parliament. But under the current constitution, there is a fixed period for the president and a fixed date for a General Election.
The election of all members of both houses and that of the President are tied together, as the constitution envisages and mandates that they will be carried out at the same time.
The situation is compounded by the fact that both the Senate and the National Assembly have since been dissolved. Ideally both houses can be reconvened, but only to discuss a specific matter and not to conduct normal business.
“If there is to be any change to the constitution, the institution mandated to do so will not be able to sit as there will be no members, indeed the constitutional amendment would require to be passed by both houses,” said
There can be no vacuum in law according to Nairobi based lawyer Charles Kanjama and therefore, the head of state will remain in office until either his mandate is renewed or another one elected, but for how long? This is a hard question as the constitution does not envisage such a situation.
“But the situation will not get to that point. IEBC must move with speed and even call the stakeholders on Monday to agree on the way forward because they do not have the liberty of time,” said Kanjama.
According to Kanjama, IEBC, being the election manager in the country could vary the dates. “This will be triggered by cosmic events, not your ordinary cases like what has just happened.”
Given the election date is well spelt out in the constitution, only a referendum can vary the dates.