Suit casts shadow on March 4 General Election

By Wahome Thuku

Nairobi, Kenya: Lately, the Independent Electoral and Boundaries Commission (IEBC) has become a popular name in the corridors of justice.

Since it was reconstituted last year, IEBC has spent millions of shillings on private lawyers defending it against dozens of lawsuits and petitions filed by individuals, NGOs, companies, political parties and other entities.

Virtually every vital act and decision of the commission has been contested in court. All kinds of orders are sought against IEBC; from being compelled to register prisoners as voters; to extend registration to those in Diaspora; to bar some aspirants from contesting in elections; to publish its vetting rules; the list is endless.

The latest of the suits arises from a decision by IEBC to procure printing of ballot papers and result forms for the March 4 General Election through single sourcing.

A British company, Aervote Ltd, filed a petition at the High Court last month seeking to stop supply and delivery of 15 million ballot papers and forms over what it calls breach of procurement law. IEBC awarded the Sh1.6 billion contract through direct procurement to UK firm Smith and Ouzman. The contract was signed on November 9, last year.

Smith and Ouzman was incorporated in the UK on March 12, 1946 and has done business in Africa since 1970s, supplying printed materials for various governmental organisations, agencies and institutions including Kenya National Examination Council, National Examinations Council of Tanzania, Uganda National Examination Board, Electoral Commission of Kenya (ECK) and Interim Independent Electoral Commission (IIEC), among others.

They supplied election materials to ECK (now defunct) between 1997 and 2007 and to IIEC from 2008 to 2011.

Two cases

Aervote Ltd filed the case at Milimani Law Courts through their legal representative in Kenya, Mr Jimmy Mutinda, to have the contract quashed and the parties prohibited from relying on its terms. They also want the contract revoked until the case is heard and determined.

Soon after, two other companies, Kalamazoo Security Solution and Ren-Fom CC also filed a similar petition and the two cases were consolidated. Aervote claims the awarding of the contract was not above board as other interested parties were ignored. It was discriminative and against the spirit of the Constitution.

Smith and Ouzman filed an objection through their lawyer Philip Nyachoti arguing that the court had no jurisdiction to entertain the suits. His argument was that the other firms were not party to the contract between IEBC and Smith and Ouzman, hence could not interfere with it.

Under the Public Procurement and Disposal Act, an aggrieved candidate in a tender should seek review by Public Procurement Administrative Review Board (PPRB).

Nyachoti argued that none of the applicants had invoked that procedure before going to court hence the application should be struck out.

The lawyer further submitted that the contract had already been signed hence going by the procurement law it was not open for review.

Nyachoti said the court could only entertain an application arising from the decision of the PPRB and not from a decision of a procuring entity such as IEBC. The applicants had decided not to go to the review board hence they could not take the matter to court, he added. Their application in court was premature, he noted.

Smith and Ouzman representative in Kenya, Trevy James Oyombra, defended the company from accusations of incompetence.

He said they had previously been contracted to print, transport and supply millions of ballot papers and other related election materials to the UK, Zambia, Somaliland, Uganda, Rwanda, Burundi, Botswana and Iraq, among other countries.

“We have received numerous and tremendous commendations and appreciation from various agencies and international organisations, including International Foundation of Election Systems Washington DC, European Union Delegation of the European Commission to the Republic of Lebanon, United Nations Development Programme and European Union Delegation of European Commission to Zambia, among others,” the company said.

Supervisory mandate

It described itself as experienced printer and supplier of election materials and was not experimenting with the March 4 polls, as claimed by the applicants. They said they had the financial standing and capacity to do the job.

IEBC lawyer Anthony Lubulellah and Attorney General Githu Muigai supported the objection raised by the company.

Aervote, however, maintained that PPRB could only deal with a matter raised by a candidate in a tender. In this case, they had not submitted any tender nor given an opportunity to do so since it was a direct procurement. They became aware of it long after the contract had been signed. Therefore, they could not have gone to the board for review.

The only forum where they could raise the matter is in the High Court, which has supervisory mandate donated by Article 165(5) of the Constitution over decisions made by public bodies such as IEBC.

Presiding Judge George Odunga acknowledged the position of Section 93 of the Procurement Act that only a disgruntled candidate in a tender could file for a review by the board.

A candidate is anyone who had submitted a tender to a procuring entity. The applicants in this case were not candidates for the tender hence could not access the PPRB for review. They were challenging the direct procurement by the IEBC and the contract having been signed, the matter could not be subject for review by the board.

“Where a remedy provided under the Act is made illusory with the result that it’s practically a mirage, the court will not shirk from its constitutional mandate to ensure that a person’s right to have any dispute that can be resolved by application of the law in a fair manner and public hearing is achieved,” he ruled.

The judge held that where there is a gap in enforcement of legal rights, a party had to seek the intervention of the court and the courts have a right to investigate the allegations.

Full conclusion

“To fail to do so would be to engender and abet an injustice and as has been held before a court of law has no jurisdiction to do injustice,” he said.

He added that the law would be thought to have failed if it could not offer remedy for the deliberate acts of a person, which causes damage to the property of another.

The judge said if he entertained the preliminary objection raised by Smith and Ouzman, the applicants would be left with no remedy. He ruled that the court thus had jurisdiction to entertain the case and dismissed the objection. The case will now be heard to the full conclusion.

The writer is a court reporter with the Standard Group Email: [email protected]