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Victory for IEBC in ballots tussle

Paul Muhoho and Anthony Mwangi @PeopleDailyKE

The homestretch is now clear for the Independent Electoral and Boundaries Commission (IEBC) to hold the General Election on August 8 after the Court of Appeal allowed it to proceed with printing of presidential ballot papers.

The printing of presidential ballot papers by Dubai-based Al-Ghurair Printing and Publishing had been hanging in the balance, barely three weeks to the election date, after the Opposition was granted its wish by the High Court two weeks ago to halt it until public participation was adhered to in the tendering process.

But a five-judge Appellate bench yesterday sanctioned the Sh2.5 billion contract for the printing, supply and delivery of the ballot papers in readiness for the poll.

Public participation and stakeholder consultation was not a mandatory requirement before the national elections agency awarded the tender through direct procurement, Appellate judges Erastus Githinji, Alnashir Visram, Roselyne Nambuye, Jamila Mohamed and James Odek ruled in their 104-page judgment.

The judges also dismissed the cross-appeal by Nasa for failure to prove President Uhuru Kenyatta influenced the award of the tender to the Dubai-based firm.

The IEBC had initially floated the international tender on August 17, last year, and signed the deal with Al-Ghurair on November 30. However, the contract was invalidated by the Public Procurement Administrative Review Board (PPARB).

The High Court later threw out the second award to the firm following Nasa’s complaint that there was reasonable apprehension over the opaque manner in which he issue was handled by the IEBC.

The Opposition had claimed there was inappropriate association between President Kenyatta and businessman Majid Saeef Al-Ghurair, who had led a delegation of the Dubai Chamber of Commerce in a visit to Nairobi shortly before the contract was signed.

The judges, reading the ruling alternately, ruled that newspaper cuttings and media printouts relied on by Nasa amounted to inadmissible hearsay and did not prove that the tender contract was discussed by President Kenyatta and the businessman at State House in Nairobi on October 5, last year.

The earlier High Court dismissal of the allegations by Justices Joel Nugi, George Odunga and John Mativo was justified, the court held. Nasa had no evidence to demonstrate IEBC was biased in consistently awarding the contract to Al-Ghurair.

“There was no actual basis for suspicion by Nasa that Al-Ghurair was given preference since other bidders could have failed to meet the criteria set by IEBC,” the Court of Appeal said.

IEBC had no option but to resort to restricted tendering in the face of procurement deadlines and constitutional timelines for the elections, the court observed, adding that valuable time had been lost following the cancellation of previous contracts.

The second-highest court in the land pointed out that IEBC Chief Executive Officer, Ezra Chiloba, had offered uncontroverted evidence that the agency had asked for legal advice before adopting direct procurement.

The High Court had erred in imposing public participation in the tendering process, the judges noted. The High Court had also erred in dismissing public interest by threatening the constitutional right of millions of Kenyan voters to participate in the impending elections based on universal suffrage, Justices Githinji, Visram, Nambuye, Jamila and Odek said.

The IEBC, which was represented by Senior counsel Paul Muite and Karori Kamau, had protested that there was shortage of time to tender afresh.

The appeal was supported by Jubilee Party, through veteran lawyers Fred Ngatia and Ahmednasir Abdullahi and the Attorney General Githu Muigai. Nasa, which was represented by Siaya Senator James Orengo, Paul Mwangi and Prof Ben Sihanya, had lodged a cross-appeal after the High Court dismissed its assertions that President Kenyatta enjoyed a close relationship with the owners of the printing firm. Meanwhile, Jubilee Party welcomed the court ruling clearing the way for IEBC to have the presidential ballots printed.

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