Appellate judges on Friday began to hear the Independent Electoral and Boundaries Commission’s appeal against re-tendering for the printing of the presidential ballot papers.
IEBC told the court that it would need at least 50 days, “which is not feasible at the moment bearing in mind that the general election is only about 23 days away”, to tender afresh for the contract.
Lawyers representing the elections agency, Nasa and independent presidential candidate Samwel Waweru began their submissions before five appellate judges Erastus Githinji, Alnashir Visram, Roselyne Nambuye, Jamila Mohammed and Prof James Odek.
Senior Counsel Paul Muite argued that IEBC enjoyed constitutional protection to undertake direct procurement and autonomy to discharge its mandate. He said there was ample consultation with stakeholders before IEBC awarded the Sh2.5billion tender for the printing of presidential ballot papers to Dubai-based Al-Gurair Printing and Publishing Company.
Muite said the national elections agency was not required to engage public participation after Parliament had endorsed its preparations for the August 8 General Election.
Lawyer Kamau Karori said IEBC had invited all presidential candidates and crucial players to monitor the printing and secure delivery of the ballot papers in the spirit of transparency and accountability.
The printing of the ballot papers was to commence on June 22. Kamau said it was impossible for IEBC to kick-start the controversial tender because the printing of presidential ballot papers starts next Tuesday.
Attorney General Prof Githu Muigai said the contentious three-Judge decision deserved to be overturned because it was likely to plunge the country into a constitutional and political crisis.
There was no provision in the Constitution that spelt out what should happen if a presidential election is not held on August 8, he pointed out. Muigai warned there was no cure for the profound domino effect of skipping the presidential poll because it was a recipe for government shutdown and social anarchy.
Veteran lawyers Fred Ngatia and Ahmednassir Abdullahi said the High Court made contradictory orders by cancelling the tender involving ballot papers for six elections and then directing IEBC to tender afresh for the presidential ballots.
There were adequate consultations with political parties before IEBC executed the tender with Al-Gurair on June 2, they said. Ngatia and Ahmednassir, who are appearing for Jubilee Party, said the law did not allow political parties to hijack public procurement or dictate to IEBC on how to manage its operations.
Siaya Senator James Orengo said the High Court was justified to invalidate the June 2 two-year ballot printing tender since IEBC had a pre-determined beneficiary.
The contract was not exclusive to the 2017 General Election and could be terminated at will by the IEBC, he said. Orengo, assisted by lawyer Paul Mwangi, accused the national elections agency of violating the Constitution and defying the law in its tender procurement.