The electoral commission will procure new ballot boxes for the October 17 repeat presidential election.
The revelations were made by lawyer Paul Muite on Wednesday after the Supreme Court delivered its full judgment on Raila Odinga’s presidential petition.
The decision to buy the ballot boxes was arrived at after Mr Muite’s plea for the court to free up the boxes used on August 8 ran into legal headwinds that require all election materials to be preserved for three years after poll.
“As a consequence of the court ruling, it is my clients’ contention (that) there is no need to preserve the presidential ballots,” Mr Muitehad told the apex court.
“I have instructions from the IEBC and its chairman that the ballot boxes should be unsealed as they will be used for the repeat presidential election.”
The law requires that after a General Election, all materials be preserved for a period of three years.
Mr Muite had argued that the failure by the court to give the orders would have impacted on the preparations of the October 17 repeat presidential poll as ordered by the court.
“It is in the public interest for the ballot boxes to be unsealed so that the commission can conduct the election within the set time frame,” he told the court.
However lawyers James Orengo for Mr Raila Odinga and Kalonzo Musyoka’s legal team and Mr Fred Ngatia for President Kenyatta opposed the application, citing the legal requirement on preservation of poll materials.
Mr Orengo said the legal requirement was not limited for the purposes of litigation.
“They are preserved because members of the public may want to look at the materials for purposes which include the credibility in the conduct of the elections without necessary seeking a determination,” he said.
While not expressly rejecting the release of the boxes, Mr Orengo told the judges that they could order the release of the boxes, but must provide other mechanisms to preserve the ballot papers used in the August General Election.
“Whether used, or unused, all the materials should be preserved even if the boxes will be released for use on October 17,” he said.
Mr Ngatia said it is a statutory edict that election materials be preserved that the court was being asked to depart from.
“Difficult matters have emerged from the three judgments. We want the elections materials to stay where they are because this country is large enough to buy other ballot boxes. You can’t talk of shillings and cents when you have nullified a presidential election,” he said.
He added: “Don’t cede because the materials may be important for other processes, including a scrutiny of all votes in the nullified presidential election.”
Attorney-General Githu Muigai said while it is important to respect the provisions of the law in respect of preservation of the materials, he observed it is not prudent for the country to incur further expenses after the country has run a very expensive election.
However, Mr Muite withdrew his application after the AG, in answer to Deputy Chief Justice Philomena Mwilu, confirmed to the court that the ballot boxes are also election materials as provided in law.
Chief Justice says the apex court will quash presidential poll again if anomalies that marred August 8 poll are not fixed.