Three judges on Friday nullified the tender for the printing of presidential ballot papers, arguing that the electoral commission had failed to engage the public.
High Court judges Joel Ngugi, George Odunga and John Mativo also directed the Independent Electoral and Boundaries Commission (IEBC) to start the tendering process afresh.
They said that the commission, as an independent arbiter, should have engaged all presidential candidates in the decision leading to the choice of Al- Ghurair Printing & Publishing through direct procurement.
It had emerged that other than President Uhuru Kenyatta and Nasa flagbearer Raila Odinga, the IEBC had not fully engaged the other presidential candidates in the process.
“The failure to consult all the presidential candidates was unfair. IEBC should have treated all the candidates equally,” the judges ruled.
However, the commission has indicated that it will be at the Court of Appeal next week to contest the order nullifying the presidential ballot printing tender.
Its chairman, Mr Wafula Chebukati, Friday said the ruling was likely to affect the elections which, according to the Constitution, must be held on the second Tuesday of the fifth year.
In this case, the election must be held on August 8, exactly one month from tomorrow.
The case had been filed by the National Super Alliance (Nasa), which was opposed to awarding the tender to Al-Ghurair, saying that there was publicly available information linking the firm’s directors and shareholders with President Kenya.
The Opposition coalition said it was apprehensive that other presidential candidates may not get a fair electoral process.
In their ruling however, the judges faulted Nasa for relying on newspaper articles to prove the alleged relationship between Al-Ghurair and President Uhuru.
They said newspaper articles on their own, are inadmissible in law, and if allowed, may encourage instances where parties may in future seek to influence such publications and then use them in court in a manner that would prejudice other parties in the case.
The judges also said Nasa had failed to prove that there was a relationship between the President and Al-Ghurair directors.
The ruling came just two weeks after another Court of Appeal ruling, which said the presidential election results declared by IEBC’s Constituency Returning Officers are final and cannot be tampered with at the national tallying centre.
IEBC had appealed a similar High Court ruling. It has since said that it will not be challenging the decision of the Court of Appeal.
The ruling also comes 30 days to the General Election, meaning that the commission has to race against time to ensure that it floats a tender for the printing of the presidential ballot papers.
TYPES OF TENDER
The law provides that the commission can use an open tender — which is likely to take more time than IEBC has to the election — or a restricted tender, in which case it will invite a few companies to bid.
However, it can also resort to single-sourcing. IEBC also has a fourth option of appealing the decision.
The judges allowed IEBC and other interested parties to appeal the ruling, but declined to grant orders stopping the implementation of their ruling as the commission had requested.
Mr Chebukati said the commission had already instructed its lawyers to appeal.
“We regret this decision given the urgency to prepare for free, fair and credible elections in the next 30 days,” he said in a statement.
He said the judgment was “very novel” due to the judges’ observation that there was no public participation before the tender was awarded to Al-Ghurair.
He underscored the fact that the court dismissed most of the claims raised by Nasa and others opposed to the award, save for the claim on public inclusion.
“We note that the judgement has far-reaching implications on the elections.
"As a result, the commission has instructed its advocates to appeal the decision. In the meantime, the commission urges all Kenyans to be calm and focused on how we get ready for the elections,” he said.
AL-GHURAIR IN PLAY
The judges said they would restrict themselves to the tender for the presidential election ballot papers, meaning that the ruling will not affect the printing of ballot papers for MCAs, MPs, Senators, Governors and Woman Representatives.
Although Nasa had asked the court to lock out Al-Ghurair from the tender to print the presidential ballot papers and any other for future elections, the judges expressly turned down the request, meaning that the company can still be considered to print the presidential ballots.
Jubilee Party lawyer Fred Ngatia said that among the questions they will be raising in the Court of Appeal is whether the contract to print ballot papers for the six elective positions, which was awarded to Al Ghurair, can be nullified partially.
The court only nullified the printing of the presidential ballot papers.
“We will appeal whether it is viable and lawful to cancel a sixth of a tender,” he said.
IEBC, through lawyer Kamau Karori, also said that the question as to whether IEBC can carry out the participatory process ordered by the court within the remaining time and carry out an effective general election on August 8, is a critical one and they intend to raise it at the Court of Appeal.
The IEBC exuded confidence that the Court of Appeal will deliver its ruling on the matter before July 18, when the printing of presidential ballot papers is expected to commence.
Al-Ghurair through lawyer Waweru Gatonye said that the contract for the printing of ballot papers had already been signed and it is in force.
Further, material for the printing of presidential ballot papers had already been procured.
“It is obvious the orders given today will affect the contract in a profound manner given the contract was for Sh2.5 billion, and the money had already been committed to Al-Ghurair,” Mr Gatonye said.
The parties however agreed that since the appeal is limited to challenging public participation, the determination is likely to be given in the shortest time possible and enable IEBC adjust accordingly.
Additional reportinb by Richard Munguti