Ballot tender and voter apathy cloud roadmap to August polls

A series of legal and legislative technicalities, an embarrassingly demotivated electorate, and miscalculations by Kenya’s electoral body risk jeopardising preparations for the August polls and putting undue pressure on the elections calendar.

And now, sensing that it could become more vulnerable and bear the brunt of blame should anything go wrong, the Independent Elections and Boundaries Commission is warning that time has come to put everything in order.

The commission was shocked into action by a High Court ruling annulling the Sh2.5 billion ballot paper tender award to a Dubai firm, and said similar actions by both the Judiciary and Parliament since last October were jeopardising its elections preparedness.

But even as it did so, Kenyans, who have had a month to register as voters, were joining kilometre-long queues to register as voters on the last day of the listing campaign, putting to question their eagerness to perform their civic duties. A court later in the day extended the voter registration drive by two days.

In Nairobi, the IEBC fell short of declaring that the High Court ruling on the ballots tender had toppled its roadmap to the elections date, only saying it had filed a notice in court to appeal the verdict.

Chief Executive Officer Ezra Chiloba said it was not just the cancelled ballot paper deal that could complicate matters, but the various effects of the ruling that touched on many issues that could spell doom for the August polls.

PREPARE AN APPEAL

In a letter addressed to the registrar of the constitutional and judicial review division of the Milimani High Court, lawyer Antony Lubullelah, for IEBC, requested documents relating to the case so as to prepare an appeal against Justice George Odunga’s verdict.

In the February 13 verdict, Justice Odunga ruled that it was unreasonable for the electoral body to have awarded the tender to the Dubai firm without considering compliance with the new elections laws and the Public Procurement and Assets Disposal Act.

In a series of tweets Monday night, hours after the ruling, Mr Chiloba suggested the commission could be forced to restart preparations for the elections.

He said that from his reading of the 145-page judgment by Justice Odunga, it would have “huge implications for next elections”.

“Basically, what (the) Odunga judgment means is that all decisions made by IEBC in the last three months were null and void,” Mr Chiloba tweeted.

He added that this would affect decisions made by the commission from October 4, 2016 — on by-elections, ballot papers, audit, staffing, the integrated election management system, registration, information and communication technology regulations, and others. All these, he said, were effectively null and void.

There is already another case against the award of the contract to audit the voters’ register to KPMG, while the procurement of the election management system was allowed by the Public Procurement Administrative Review Board.

The case against the award of the ballots contract to Dubai’s Al-Ghurair had been filed by the Opposition coalition on the basis that the action was contrary to the Election Laws (Amendment) Act.

SLIDING INTO ANARCHY

“It was unreasonable for IEBC to proceed with the award of tender without taking into account the new regulations,” Justice Odunga ruled.

Mr Chiloba appeared to criticise the basis of the Odunga judgment, saying that “fundamental departure from public sector governance practice is the idea that board members should be engaged in procurement activities”.

But in the judgment Mr Odunga defended himself, saying courts have a responsibility to rescue the country from sliding to anarchy again, “so where it is brought to the attention of the court that certain electoral processes are being undertaken which are not in accordance with the Constitution and the law, the court must give appropriate directions and ought not to wait until the country goes into flames before undertaking its mandate”.

“Unless Kenyans are assured that their will in the ballot box will be upheld,” explained Mr Odunga, “they are likely to be disillusioned with the electoral process.”

NEW LEGAL REGIME

He argued that IEBC ought to have converted to a new legal regime that came into force from October 4, 2016, adding that procurement of ballot papers should have been abandoned after new laws came into place.

“This is even so taking into account the fact that by the time the formal contract was being entered into, the Amendment Act had already commenced on October 4, 2016. It was therefore unreasonable on the part of the IEBC to have proceeded with the contract in light of the new legal developments,” he stated.

In effect, Justice Odunga’s judgment implies that any decisions the IEBC made after President Uhuru Kenyatta declared commissioners’ seats vacant late last year cannot be taken to be constitutional and legally binding.

“The presidential declaration of vacancy was made October 5, 2016, 13 days before the letter to the first interested party was drafted. In my view, section 134(1) of the Public Procurement and Asset Disposal Act only empowers the accounting officer to prepare and execute the contract,” said Justice Odunga.

During the period in question, the former commission approved several critical assignments, including the ongoing vote listing exercise that was due to end yesterday and procurement of a number of strategic polling day materials