Appellate judges on Friday began to hear the Independent Electoral and Boundaries Commission’s (IEBC) appeal against re-tendering for the printing of the presidential ballot papers. Attorney General Githu Muigai said the High Court’s decision should be overturned because it was likely to plunge the country into a constitutional and political crisis.
Muigai warned that changing the election date was a recipe for government shutdown and anarchy. 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 IEBC, Nasa and independent presidential candidate Samwel Waweru began their submissions before the five appellate judges: Erastus Githinji, Alnashir Visram, Roselyne Nambuye, Jamila Mohammed and 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 Sh2.5 billion tender for the printing of presidential ballot papers to Dubai-based Al-Ghurair Printing and Publishing Company.
Muite said the elections agency was not required to engage the public 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 papers was to commence on June 22. Kamau said it was impossible for IEBC to kick-start the tender because the printing of presidential ballot papers starts next Tuesday.
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.
But lawyer 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.