BY SAM ALFAN
After vowing to appeal a court decision cancelling ballot printing tender, the IEBC has told a higher court that the decision failed to link public participation in direct tendering.
On Friday Justices Joel Ngugi, George Odunga and John Mativo on canceled the tender awarded to Al Ghurair Printing and Publishing Company on grounds that there was no public participation.
In an appeal lodged today, IEBC says the Judges erred in finding public participation was mandatory to direct procurement conducted pursuant to the provisions of the public procurement and asset disposal act 2015.
The three Judges, it says failed to apply the principle of harmonious interpretation of the constitution when considering the provisions of article 10 and 227 of the constitution.
Lawyer Kamau Karuri for IEBC says that the Judges erred in law when they directed the electoral body to craft a program of Public Participation to Operationalize article 10 of the constitution.
“The judges were in effect directing IEBC to asurp parliament role of legislative,” records in court documents.
The lower court erred the moment they asurped the constitutional functional autonomy of IEBC to set operational programs including the timetable for procurement of elections materials.
IEBC also claims that the three Judges were misguided with the assumption that there was still time available to procure the election materials without any factual basis disregarding their professional assessment.
While delivering the judgement on Friday, The three judges bench led by presiding Judge Joel Ngugi ,Justice George Odunga and John Mativo they directed the Independent Electoral and Boundaries Commission (IEBC) to start the tendering process afresh.
They said that the commission, as an independent body, should have engaged all presidential candidates in the decision leading to the choice of Al Ghurair printing & Publishing through direct procurement.
They, however, declined to cancel the printing of the other ballots for the Member of County Assembly, Member of the National Assembly, senator and governor slots because there was no dispute concerning them.
In their ruling, the judges said the commission had failed to ensure public participation in awarding the tender to Al Ghurair as required by the law.
“It is necessary to ensure that election systems are free, fair and transparent. The systems should be secure and results announced promptly.
Appropriate structures should be put in place to avoid electoral malpractice,” they ruled. The judges also rejected an application by IEBC lawyers led by Fred Ngatia for a stay of execution pending appeal on Monday saying those aggrieved by the ruling can seek redress in the Court of Appeal.
They argued that it is not impossible for IEBC to start the process again in order to conduct free, fair and credible election.
The judges, however, dismissed claims by the opposition National Super Alliance (Nasa) that the firm met President Uhuru Kenyatta and could thus have influenced the award of the tender.
“We have not seen any evidence that there was a meeting between the President and the officials of Al-Ghurair, newspapers cuttings are insufficient to be used as evidence in a matter and therefore the allegations by Nasa that there was a meeting between president and Al-Ghurair is below threshold,” they said.
Proceedings resume.
