NASA presidential candidate Raila Odinga (left) with IEBC Chairman Wafula Chebukati and CEO Ezra Chiloba. (Photo: Beverlyne Musili, Standard)
The stalemate over the procurement of ballot papers threatened to blow out of control, with the electoral commission and the Opposition sticking to their guns.
But what are the options for both the National Super Alliance (NASA) and the Independent Electoral and Boundaries Commission (IEBC) in the matter?
Constitutional lawyer Bobby Mkangi says should NASA proceed to court, the Judiciary will have to give direction considering the congested timelines.
The court would also consider the integrity of the process based on the evidence that would be adduced before it can either cancel it or reject NASA’s prayers, he adds.
In the event that it is cancelled, IEBC would have to re-start the process.
The Constitution stipulates that a General Election shall be conducted on the second Tuesday of August after every five years, putting this year’s poll at August 8.
This means the commission would have less than 52 days to call for tender applications, have the ballots printed and delivered.
“In the event that it is cancelled, IEBC will have to consider other firms that had submitted their bids in the previous process to supply the ballot materials. It may also mean totally disqualifying the firm at the centre of the contest and considering a firm that has the capacity and is agreeable to those contesting,” Mr Mkangi says.
Former Law Society of Kenya boss Apollo Mboya believes for a credible process to take place, the commission has no option but to re-tender.
Mr Mboya says there is still enough time, considering IEBC is yet to start printing ballot papers. But in the event that NASA prayers are rejected, the Opposition would have the liberty to participate in or boycott the election.
There is no law stopping the elections if one or more candidates in a process pull out over integrity of the process.
But Mkangi opines that should NASA pull out, it will politically compromise and destabilise the whole process.
“Legally, the process will have to go on, but it would be highly compromised. We will end up having an election where the presidential winner does not enjoy legitimacy. It would result in instability,” he says.
Jubilee tells NASA off over ballot tender
The Public Procurement and Disposal Act states that in the event of a restricted tender, IEBC will require a minimum of 14 days for the preparation of tenders for the purposes.
“The notice inviting expressions of interest prepared by the procuring entity (IEBC) pursuant to Section 78 of the Act shall be give a minimum period of 14 days,” adds the Act.
This means it would take the commission at least 28 days to conclude a contract with ballot papers and results forms providers.
In a document to Parliament, IEBC says it would take another 21 days for the material to be printed and packaged, while another five days would be required for proof reading and inspection and acceptance of the materials.
Air lifting the 120 million ballot papers would require another seven days, while another five days would be spent at the customs duty clearance. The commission told the Justice and Legal Affairs Committee that it plans to start printing by June 25 – nine days from today.