Courts, procurement board scrutinise IEBC avoid blunders

Public Procurement Oversight Authority (PPOA) Chairman Paul Gicheru adress the press while ruling on the tendering process of IEBC election materials on 28/11/2016. PHOTO BY PIUS CHERUIYOT

The Judiciary and the Public Procurement Administrative Review Board (PPARB) have taken centre stage in shaping the electoral commission’s preparations for the August polls.

Since January, the High Court and PPARB have determined more than 10 cases that are key in shaping the credibility of the August 8 elections.

From cancelling multi-billion shilling tenders and giving orders to the Independent Electoral and Boundaries Commission (IEBC) on what should be done, the Judiciary and PPARB have not left anything to chance and have noted in several decisions that they would not allow IEBC to do things the wrong way.

Court cases

Whereas the commission has repeatedly said the numerous court cases challenging its operations are delaying its preparations, many lawyers support the court’s intervention, saying it is the only way to ensure free, fair, and credible elections.

According to lawyer Demas Kiprono, IEBC should blame itself for the numerous cases before the courts and PPARB.

“The cases and decisions we see coming from courts show that there are things IEBC is not doing right. Imagine the commission giving a contract to a company with no capacity to deliver. We would have no one to blame. That is why the courts are justified in their decisions,” said Kiprono.

Both the courts and the PPARB have maintained in many of their decisions that it would be better for the IEBC to delay some processes and do them correctly than rush and do things that could lead to disputed results.

The latest case is the controversy surrounding the printing of ballot papers, which has been cancelled by the High Court two times and once by PPARB.

While upholding the decision of PPARB to cancel the procurement process being used by IEBC to secure the key election materials, Justice George Odunga noted that the commission has refused to learn from the shambolic preparations for the 2007 elections, leading to post-election violence.

“IEBC seems to have forgotten that in 2008, this country was nearly torn apart due to what was perceived to be a flawed manner in which elections were conducted. Kenyans expect nothing but the best from the commission,” said Odunga.

The tender for the supply and delivery of ballot papers, election results declaration forms, and poll registers was initially awarded to Al Ghuraiar Printing and Publishing Company last October but was cancelled by the High Court in February over the flawed process.

IEBC begun a fresh process in April, but this was again challenged at the PPARB over allegations that the method being used was riddled with irregularities.

The PPARB, chaired by lawyer Paul Gicheru, again cancelled the tender process, ruling that it would not allow the commission to do things in a manner that does not show seriousness in preparation for the election.

“The process was, to say the least, a sham and embarrassing and was conducted with such casualness and lack of diligence at the level that leaves the board wondering whether IEBC appreciates the enormity of the assignment and gravity of the matter at hand,” ruled PPARB.

At one point when cases against IEBC’s tendering processes were piling up, the PPARB warned that the commission risked losing the right to procure key electoral materials just to ensure that the processes were above board.

Section 52 of the Public Procurement Act allows the authority to transfer the procuring responsibility of a procuring entity to another firm in the event of delay or in such other circumstances as may be prescribed.

The PPARB also had to give IEBC directions on how to advertise and proceed with the tender for the supply, installation, testing, and commissioning of the Kenya Integrated Election Management Systems following a dispute over the procurement process used by the commission.

Lawyer Henry Kurauka agreed that the commission should do everything above board to avoid claims of suspicion and that the courts are justified in shaping IEBC’s preparations for the August 8 polls.

“It is only the courts that can correct the mistakes being made by IEBC and we can’t blame the judges on account of timelines, as the commission has said. The Judiciary has an obligation to ensure the law is followed,” said Kurauka.

Poll timelines

Lawyer Nicholas Sumba added that what the Judiciary and the PPARB are doing are only meant to ensure there is credibility in the election process and that they should not be blamed for interfering with IEBC’s timelines.

The court has also been involved in shaping the declaration of presidential results, which has been a controversial dispute in past elections.

A three-judge bench of justices Aggrey Muchelule, Chacha Mwita, and Weldon Korir settled the perennial dispute by ordering that the presidential results announced at the constituency are final.

The IEBC has contested the decision at the Court of Appeal, but if the decision is not overturned, it will shape the way it conducts and tallies results in the August polls.

The High Court also ruled that the requirement that independent presidential candidates must submit 2,000 signatures of non-party affiliated supports from at least 24 counties was illegal. The High Court extended the deadline for mass registration of voters twice.