Commissioners of the Independent Electoral and Boundaries Commission are set to hold a crisis meeting on Monday to chart the way forward after procurement of ballot papers was cancelled.
The Public Procurement Administrative Review Board on Friday cancelled Sh2.5 billion tender process after a Kenyan company petitioned against the method that was followed to identify the winning company. An earlier award to the Dubai-based company Al Ghurair had been cancelled earlier in the year.
Questions are now emerging on whether the whole process was bungled to arrive at this moment when it will be untenable to do an open tender. Direct tendering is allowed in the procurement law in special circumstances and the ruling by the review board appeared to have opened the door for the IEBC ahead of the elections.
The board’s chairman Paul Gicheru while reading the orders said IEBC can resort to “such method as it may consider appropriate taking into account the time left between now and August 8 and all such other factors as it may consider necessary.”
According to its own timelines, the IEBC ought to have awarded the tender by May 28. The commission has already received names from political parties and independent candidates for those who will be running in the General Election.
When the review board rendered its decision on Friday, it gave the IEBC an opening that could only be interpreted that direct tendering was the only possible route.
When the commissioners meet on Monday, sources indicated, they will consider companies that have the capacity and financial wherewithal to print the ballot papers at short notice.
There has been a simmering infighting between the commissioners on one hand and the secretariat on the other. Sources indicated some commissioners are contemplating targeting senior secretariat staff who they feel have made omissions and commissions that have led to the current stalemate.
Sources indicated that the commission may opt for companies that are approved by United Nations Development Programme, which has been involved in elections across the world.
In September 2016, the IEBC awarded the tender to Al Ghurair Printing and Publishing Company which was immediately challenged by Paarl Media at Public Procurement Administrative Review Board.
The matter dragged on until April this year when Court of Appeal agreed with High Court that there should be a fresh tender process.
The Court of Appeal rendered its decision on April 26 and directed the IEBC to restart the tender process which was stopped on Friday.
When it initiated the new process last month, the IEBC invited the original nine suppliers and also added four others which indicated they had the capacity. It was a restricted tender but the company that challenged the process Rosecate Promotions and Supplies Limited, according to sources, seemed to have lot of insider details.
“The company that appealed downloaded bid documents but returned all of them blank. They did not fill anything, only to later appeal about the process. What was baffling was that they had a lot of insider details that they filed in their appeal,” said a source.
A source at the IEBC said it was not clear why the appeal was allowed yet no issues were raised during a pre-bidding conference held on April 28.
ODM director of nominations Junet Mohamed said Nasa was looking to see how the tender process will be awarded.
“It appears that the whole process was designed to arrive at this juncture where the commission will resort to direct tendering and it seems they had a winner in mind. We do not want a repeat of 2013 where there cases of bribery,” said Mr Mohamed.
Nasa executive director Norman Magaya said that they will reject any attempt to give Al Ghurair the tender.
“They have only participated in remote controlled democracies like Libya where elections are pre-determined. We will resist with maximum force,” he said.
But Jubilee party secretary-general Raphael Tuju said Nasa has an unhealthy obsession with who wins tenders.
“We are not interested with who gets what. It’s like our opponents want commissions from the winners. All we want as Jubilee are credible elections. We do not know the names and we are not interested,” he said.
The IEBC’s communications director Andrew Limo downplayed the issue, saying the commission will deliver.
“Despite the challenges encountered so far, the Commission is determined and confident that it will pull through the next procurement for the ballot papers in compliance with the law and to the satisfaction of all players. Most processes had been deliberately started early because we wanted to avoid the last minute logistical challenges we faced in 2013. Now that we have political party nominees and candidates, the quantities and distribution of ballot papers are even clearer. The commission will meet and give a way forward,” he said.
Elsewhere trade unionist Francis Atwoli criticised the Judiciary over its decision to cancel the tendering.
The Cotu secretary-general said the ruling risks having ripple effects on the August 8 elections, as it will interfere with the deadlines set by the electoral commission.
The unionist said the ruling made by the review board on Friday would also interfere with the individual rights of Kenyans to exercise their democratic rights in the August polls.
Speaking at the Tom Mboya Labour College in Kisumu, Mr Atwoli said the Judiciary, being the arbitrator in disputes, should not make last minute decisions that would raise questions on its independence.
“The courts must understand the situation around us and the political environment that the country is in. They are behaving as if they live on the moon,” said Mr Atwoli.
Besides the Friday ruling, the Judiciary has also been put on the spot over last minute judgments, including those on the extension of the voter registration, nomination deadlines as well as determination of appeals arising from party primaries, decisions observers say could have ripple effects on the election calendar.
The Judiciary, through the Court of Appeal, is also set to determine a case lodged by the electoral commission on the declaration of presidential results at the constituency level.
Chief Justice David Maraga has, however, defended the Judiciary saying, “judges and magistrates understand their role, they will decide cases based on the facts and the law.”
Mr Maraga said there was no possibility that judges and magistrates would be intimidated into making rulings in favour of intimidators.
“Judges and magistrates will not determine cases on what is said but based on the law and facts. Politicians and members of the public should steer clear of Judiciary affairs as a sign of respect to its independence,” Mr Maraga said.
Earlier, the Opposition Nasa had warned the Court of Appeal against overturning a ruling that presidential results declared by the returning officer at the constituency are final.
Nasa leaders in a rally in Nakuru last Sunday, threatened to boycott the August polls should the IEBC go ahead to appeal what they termed a loophole to rig elections.
“We will not allow IEBC to tamper with the court ruling on the tallying issues. If they will, let them know that no elections will be held,” said Nasa presidential candidate Raila Odinga.
Additional reporting by Silas Apollo.