The electoral commission Friday tried to allay fears expressed by the National Super Alliance (Nasa) that ballot papers will be interfered with, saying it had put in place sufficient mechanisms to prevent such malpractices.
IEBC through lawyer Kamau Karori told a three-judge bench that it will employ the use of technology where voters will be identified biometrically and only results in respect of the voters who turned up to vote and were identified biometrically will be accepted by the system for electronic transmission.
“This will ensure that excess ballots are not introduced in the system. The fear by Nasa on possibility of ballot stuffing does not therefore arise,” Mr Karori said.
“Direct procurement is an option provided for under the Public Procurement and Asset Disposal Act, and the IEBC cannot be faulted for the choice it made. There is no argument suggesting the commission acted outside the law,” he said.
The IEBC also said Nasa has not demonstrated how it will be prejudiced if Al Ghurair is allowed to proceed with the printing.
Nasa is opposed to the tender awarded to Al Ghurair, saying that there are publicly available information concerning associations between the firm’s directors and shareholders with President Kenyatta.
The alliance is apprehensive other presidential candidates may not get a fair electoral process.
Lawyer James Orengo for Nasa told judges Joel Ngugi, George Odunga and John Mativo, that the amendments to the Elections Act allowing IEBC to revert to manual identification of voters and transmission of results, in case the electronic system fails, has made them apprehensive that ballot stuffing may still occur.
Lawyer Jackson Awele, also for Nasa, said that printing of ballot papers has a correlation with ballot stuffing, adding that the concerns one of the presidential candidates has a relation with the firm awarded to print the ballot should be taken seriously.
Mr Awele added that direct procurement was chosen to lock out competition from other contenders and ensure the tender is awarded to Al Ghurair.
He said there was need for public participation before IEBC arrived at Al Ghurair.
He added that since the IEBC has admitted that the printing of the presidential ballot papers will commence on July 18, there is sufficient time to re-tender and still beat the deadline and have elections held on August 8.
Attorney-General Githu Muigai warned that should the court issue orders that will prevent the elections from being held on August 8, then the country would be thrown into profound constitutional crisis because the date has been set in the Constitution.
Prof Githu added that the courts cannot direct the IEBC on how to do its work.
Thirdway Alliance presidential candidate Ekuru Aukot through lawyer Elias Mutuma said IEBC had acted in a biased manner when it failed to consult him on the choice of Al Ghurair when other presidential aspirants were consulted.
He suggested to the court to order that presidential ballot papers be printed by a local firm, which is neutral, so that all the presidential candidates can conveniently be able to supervise the printing process to ensure transparency.
He also suggested that all ballot papers be packed in 290 different pallets for each constituency and sealed by all the presidential agents at the printer’s premises, and the seals to be broken at constituency level.
IEBC’s lawyer however said that the commission, which is an independent and neutral body, should be left to conduct its mandate of deciding on the choice of the firm to print ballot papers, saying that the political class can never reach a consensus on such a delicate subject.
NO CAUSE FOR WORRY
Mr Karori said IEBC, in the spirit of transparency, had also invited all the presidential candidates to Dubai to witness the printing of ballot papers.
He added that there is no basis for IEBC to exclude Al Ghurair because it has performed well in previous by-elections since 2014, when President Kenyatta, who has adversely been mentioned, was still President.
Al Ghurair through lawyer Waweru Gatonye said its shareholders, directors, and staff have never visited State House or been involved in any State function presided over by President Kenyatta
Jubilee Party lawyer Fred Ngatia said the printing of the contested presidential ballot papers cannot be separated because the law does not envisage election by instalment.
He said elections for all the six elective seats must be conducted at the same time.
Mr Ngatia noted that the case by Nasa should have first been filed before the Public Procurement Administrative Review Board, before coming to the High Court.
Lawyer Harrison Kinyanjui representing a voter, Mr Samuel Waweru, also opposed Nasa’s application; saying that directing that another firm should print the presidential ballot papers will subject the taxpayer to additional cost because the tender to Al Ghurair had factored costs for all six elective seats.
A judgment will be delivered on Friday