Mediation will enable IEBC to protect its interests

Let us call the company Pesa Limited, which is a main supplier of the Ministry of Defence, a relationship that accounts for a significant portion of the company’s revenue.

The ministry now disputes an invoice from Pesa Limited, claiming that it is not payable.

However, Pesa Limited considers that the ministry is wrong.

LAW SUIT

In the circumstances, one option that the company has is to sue for the outstanding payment.

While the company can possibly win the suit, suing the ministry may threaten the relationship with the ministry, jeopardising future business.

In what to do next, Pesa Limited has a conflict.

It is a conflict between its rights, on the one hand, and its interests, on the other.

BALLOT PAPERS

While the company has a right to sue, a suit might undermine its interests by biting the hand that feeds the company.

Following a court victory against the National Super Alliance (Nasa), in a key dispute regarding the printing of the presidential ballot papers, the IEBC finds itself in a similar situation as the hypothetical Pesa Limited.

In a unanimous judgment, the Court of Appeal reversed the judgment of the High Court delivered the previous week, annulling the award of the ballot printing tender to Al Ghurair, to the extent that it related to the presidential ballots.

VERDICT
A political storm followed the High Court judgment, when the Jubilee leadership staged unprecedented attacks on the judiciary at campaign rallies, with the party’s Secretary-General, Raphael Tuju, also convening a press conference for the specific purpose of vilifying two judges.

In contrast, Jubilee’s inaction since the Court of Appeal judgment is its silent indication that this is how things should be.

However, the damage is already immense.

AL GHURAIR

Whatever its merits, the Court of Appeal judgment suffers from the perception that the judiciary is only correct if its decisions accord with the wishes of the ruling party, and that accommodating the interests of the ruling party played a role in how the appeal was decided.

The background to the suit was objection by Nasa over how the IEBC had resolved its objections to the use of Al Ghurair for printing the presidential ballot.

PARTICIPATION

There was a separate objection by the Thirdway Alliance candidate, Ekuru Aukot, that his party was not consulted in the deliberations on the tender.

While the IEBC was dragged to court by the other parties, the elections body would have foreseen none of the possible outcomes would be good for its interests.

It is therefore astonishing that the IEBC allowed the suit to go to full litigation, and even onto appeal.

Filed so close to the elections, time was always an important factor in the suit, itself a reason why the IEBC should have tried to settle the suit.

NEW TENDER

Irrespective of the merits, it became clear that time would weaken the positions of the parties and provide an independent reason why certain remedies that the courts could otherwise give, might have a compromising effect on preparations for the elections.

A win for Nasa, as initially decided by the High Court, meant that the IEBC would have to endure chaotic preparations for the elections as it would have to issue a fresh tender for printing the presidential ballots.

A reversal of the High Court now represents a humiliation of the Nasa coalition and a strain on its relationship with the IEBC.

TRUST

Viewed in context, Jubilee’s reaction to the High Court judgment further complicates the position of the IEBC, creating the perception that in fighting so hard to preserve the award to Al Ghurair, the elections body was serving special interests.

While the IEBC has won a court case that clearly has some political significance beyond the simple act of who gets to print the ballots, its victory is pyrrhic, and will erode a significant amount of the legitimacy that the IEBC is trying to build.

CONCERN
While the Nasa coalition has filed a series of suits against the IEBC, temporarily winning one before the Court of Appeal reversed its victory, Jubilee does not use litigation as a method of getting what it wants out of the IEBC.

Jubilee postures that it does not care how elections are run.

However, Jubilee’s reaction to the High Court judgment revealed that, in fact, the ruling party deeply cares.

COURT ACTION

The fact that it does not sue in court or negotiate openly means that Jubilee uses different methods to protect its interests.

By contrast, the fact that the opposition is filing so many suits against the IEBC means that the IEBC has no time for the opposition, whose only method of asserting itself is through court action, or that the suits by the opposition are misguided.

If the only way that the IEBC can take the opposition seriously is through court action, and if even after being sued the IEBC does not find the foresight to recognise the damage that certain suits can have on its standing, there are only two explanations for this.

STATE CAPTURE

The first is that the IEBC may be incompetent.

The second is that the IEBC is captured and only acts in the interests of its captors, ignoring its own.

While the IEBC has never once been in conflict with Jubilee, leading to a perception that the two have a special relationship, it is easy to conclude that the elections body does not care about its relationship with the other political parties.

PROTECTION

Ever since the last elections, the previous IEBC commissioners relied on the political protection of the government, rather than the legitimacy of their conduct, to remain in office.

Slowly, the current commissioners are edging in that direction and would now need to worry about the increasing number of incidents where Jubilee has to come to their defence.

MEDIATION
Mediation is a body of practice that has evolved out of the need to limit the damage that disputes often cause among people that otherwise need to work together.

Establishing a culture and practice of mediation will enable the IEBC to protect its interests not just its rights, reverse the IEBC’s slide towards brinkmanship, and might give the elections body a chance to show that it cares about all parties, not just the ruling party.

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