, NAIROBI, Kenya, Jul 14 – The Court of Appeal’s hearing of the Independent Electoral and Boundaries Commission’s petition against re-tendering for the presidential ballots was characterised by emotive expression, dramatisation and colourful imagery Friday.
One of the respondents, Stephen Ogana, representing independent candidates, fought back tears as he pleaded with the Court of Appeal to leave the procurement of the ballots to the professionals – IEBC – so that the elections would take place on time.
“The candidates have spent substantial resources in this process. We don’t want it (the election) to drag on.”
Advocate Harrison Kinyanjui representing a voter, Samuel Waweru, accused the National Super Alliance of a “diabolical” and “nefarious” plot to have the presidential election held in December as opposed to August 8.
Also in support of IEBC, he accused the High Court of “frolicking” in its judgement that IEBC should retender the presidential ballots.
He tore a page, literally, out of a bound document to dramatise his argument and compared the High Court judgement to a donkey painted black and white to resemble a zebra.
The appellants themselves, IEBC, were more conservative in their submissions, making the case that there was simply no time left to retender.
Their legal representative Kamau Karuri submitted that it would be impractical to retender as they would need 50 days to source for the ballots afresh while there are only 24 days left to the General Election.
Karuri also argued that it was illegal for the High Court to separate the presidential ballots from the rest of the tender awarded to Al Ghurair.
It was also the IEBC’s submission that public participation is not a requirement where direct procurement is concerned.
An argument supported by the governing Jubilee Party and supported by the Attorney General who brought it to life by way of illustration.
“Is there public participation when the Kenya National Examination Council sources for exam papers? Is there public participation when the registrar of motor vehicles settles on a colour for licences or when the Government of Kenya refurbishes its security architecture?”
He compared some provisions of the constitution to poetry arguing they were more of an aspirational nature than prescriptive.
His argument drew a forceful response from the National Super Alliance’s legal counsel James Orengo who argued that Article 10 of the constitution, on which the High Court based its judgement, was far from that.
His arguments were buttressed by advocate Paul Mwangi who cautioned the Appellate Bench of five from giving the IEBC a free pass on account of the nearness of elections.
He accused the IEBC of attempting to “scaremonger” the bench using its 50 day estimate.
“Does it really need three days to proof read a presidential ballot of eight candidates? Seven days to fly ballots from Dubai into the country when it’s only a five hour flight? Or five days to clear the ballots at the airport?” he posed.
Allowing IEBC that “small accommodation” he said, when it had many more critical decisions left on its path, would set a dangerous precedent.
“Do not allow yourselves to be cajoled by the sweet words of the Attorney General which drip of myrrh and honey. It is a trap. The last constitution died on the table of convenience.”
“Death by a thousand cuts of administrative accommodations. You must be the bench that refuses to draw first blood with this constitution.”
The presidential election, NASA submitted, was made separate by amendments to the election law with regard to the transmission of its results via the integrated elections management framework (KIEMS) of which, Orengo submitted, the ballots were the very foundation of.