, NAIROBI, Kenya, Aug 7 – From the contentious printing of presidential ballots to awarding of crucial election tenders, the poll body has contended with numerous court battles ahead of the Tuesday General Election.
Among over a dozen cases filed in court – a petition filled by the National Super Alliance (NASA) challenging the award of a ballot tender to a Dubai-based printer (Al Ghurair Printing and Publishing LLC) and another by activists Maina Kiai, Khelef Khalifa and Tirop Kitur on the veracity of results declared at the constituency level – were seen as critical in as far as conducting a successful election.
The decision by the High Court on July 7 with regard to printing of ballot papers brought with it a cloud of uncertainty, compelling the Independent Electoral and Boundaries Commission (IEBC) to convene a meeting with presidential candidates to discuss the possibility of tendering afresh printing of presidential ballots as directed by a three judge bench even as the Commission went on to appeal.
“This court issues an order of mandamus compelling IEBC to commence de novo the procurement process for the award of the tender for printing of election materials for the presidential election scheduled for 8 August 2017 in accordance with the constitution, provisions of the Public Procurement and Disposal Act and the relevant election laws so that to ensure free, fair and transparent polls are conducted on August 8,” presiding judged Joel Ngugi directed at the time.
The Commission however successfully challenged the High Court decision, with the Court of Appeal on July 20 issuing a directing annulling the orders from the lower court.
“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,” a five appellate bench comprising Justices Erastus Githinji, Roselyn Nambuye, Alnashir Visram, Professor James Odek and Jamila Mohammed established.
“It did not,” the bench held, “take into account the right of millions of voters to free, fair and regular elections based on universal suffrage.”
The July 20 ruling came as a relief for IEBC which had almost completed printing ballot papers for all other seats except for the presidential election, a printing exercise which had been slated for July 18.
Following the ruling, the Commission instructed the printer to begin the job which had been held in abeyance awaiting the decision of the appellate job.
The printer was able to complete all presidential ballots for the 19.6 million voters and some additional 1.2 million ballots for contingencies, each of the 40,883 polling stations getting one per cent more ballots.
The Commission sought to clarify that the 1.2 million ballot papers surpassed the one per cent mark due to technicalities which made it difficult for a single ballot paper to be accommodated in a single ballot booklet containing 50 ballot papers.
According to IEBC, it was therefore agreed that the additional ballots be rounded off to the nearest 50.
In the case of declaration of presidential results, the poll agency agreed to conform to the ruling made by the Court of Appeal on July 23 which upheld findings made by the High Court that results announced by the 290 constituency Returning Officers were final, could not be altered and that could only be challenged in court.
Commission Chairperson Wafula Chebukati has since clarified that in the event text results differ from what is contained in scanned Form 34B – the official document containing results at the constituency level – the scanned document transmitted using the Kenya Integrated Election Management System (KIEMS) tablets will take precedent.