, NAIROBI, Kenya, Jul 20 – There was no time to waste as the Court of Appeal on Thursday got down to the business of deciding if the Independent Electoral and Boundaries Commission would have to re-tender the printing of presidential ballots for the August 8 General Election.
Without much ado, the five judge bench composed of Erastus Githinji, Roselyn Nambuye, Alnashir Visram, Professor James Odek and Jamila Mohammed set about determining the issues at hand, eventually coming to the conclusion that it had no need to.
“The High Court exercised its discretion wrongly (in ordering for the re-tendering of the presidential ballots) without regard to the constitutional timelines within which the General Election, presidential election included, must be held.”
“It did not,” the Appellate Bench continued to find, “take into account the right of millions of voters to free, fair and regular elections based on universal suffrage.”
These were conclusions it made after finding that the foundation of the High Court order for the re-tendering of the ballots was unsound.
It found that public participation is not listed as a mandatory requirement in the law that regulates direct procurement. “The trial court erred when it imposed requirement for public participation.”
It also found that the High Court erred in adjudging the timelines for the procurement of the ballots to be operational as opposed to statutory in nature. The High Court therefore, it found, “erred in finding there was sufficient time to restart the procurement process.”
The IEBC having argued before the Appellate Court, that there simply was no time to retender for the presidential ballots and still hold the election on August 8.
It did however agree with other aspects of the High Court’s judgment upholding its finding that the political outfit National Super Alliance, had failed to prove an improper association between the firm contracted by IEBC to print the ballots – Al Ghurair Printing and Publishing LLC – and President Uhuru Kenyatta.
It also found that NASA failed to prove its claim that IEBC was biased in awarding the ballot printing tender to Al Ghurair, agreeing with the ruling Jubilee Party that it could not purport to solely rely on newspaper cuttings as proof of its assertions without providing corroborative evidence.
In its submissions, Jubilee categorised the cuttings as the now popular “fake news”; making the case that NASA had effectively made public statements to that effect, organised for the publication of said suspicions and then turned around and presented their unsubstantiated suspicions as fact.
“The 7th respondent (Stephen Owoko Oganga) submitted that the cross appeal is based on fear and speculation, not facts and evidence.”
They also found that, based on the facts before it, nothing stopped the High Court from separating the presidential ballots from those of the other elective offices, in reference to the contract IEBC entered into with Al Ghurair.
It also found that the High Court acted correctly when it went ahead to determine the ballot printing case as a constitutional petition and not strictly as a judicial review application and in admitting it in the first place, despite there no decision it was challenging attached. “It is not in contention that the IEBC directly procured Al Ghurair’s services.”