What today’s court ruling on ballot papers printing tender means to August 8 elections

The High Court is today expected to rule on an application by the National Super Alliance (Nasa), which seeks to invalidate the award of the ballot printing tender to Dubai-based  Al Ghurair Printing and Publishing Company, which it claims has links to President Uhuru Kenyatta.

Whichever way the three judges, Justices George Odunga, Joel Ngugi (presiding) and Justice J.J. Mativo, rule, the decision marks a running trend of judicial influence in the road map to the August 8 General Election.

In its suit papers, Nasa said it is apprehensive that owing to publicly available information concerning associations between the Al Ghurair’s directors and shareholders to President Uhuru and other integrity questions surrounding dealings in similar assignments in other jurisdictions, asserting the firm “is not fit or qualified for the vital task of printing election materials including ballot papers to be used for the General Election in a free and democratic society.”

In a worst case scenario, the verdict could lead to the postponement of the elections. 
If it is granted its wishes and stops the Sh2.5 billion deal, Nasa would have succeeded yet again in swaying the hand of the Independent Electoral and Boundaries Commission (IEBC) in its favour just days after securing a landmark Court of Appeal ruling that determined that the presidential election results declared by constituency returning officers would be final and not subject to alteration by the IEBC chairman Wafula Chebukati, who is the national presidential results returning officer.

While the case was initially prosecuted by human rights campaigners Maina Kiai, Khelef Khalifa and Tirop Kitur, Cord joined the appeal as an interested party, claiming the national tallying centre has previously been used to  manipulate presidential results to the disadvantage of its candidate, Raila Odinga.

High Court judges Aggrey Muchelule, Weldon Korir and Enock Chacha-Mwita had ruled that results of the presidential race should be declared exclusively by the 290 constituency returning officers and should not be subject to confirmation by anyone else.

However, IEBC, through lawyers Paul Nyamodi and Wambua Kilonzo, appealed arguing that granting the plea could lead to the filing of 290 petitions challenging the results, a position the Court of Appeal dismissed.

“I was dismayed by that ruling for the simple reason that presidential results are supposed to be announced at the national tallying centre by the national returning officer, who is the chairman of the IEBC. That is very clear in the law,” chairman Wafula Chebukati said while announcing the decision to appeal.

But the appellate court determined that it would be “illegitimate” to suggest that the IEBC chair alone was empowered “to correct, vary, confirm, later modify or adjust the results electronically transmitted to the national tallying centre” from the constituencies.
“Such a suggestion would introduce opaqueness and arbitrariness to the electoral process, the very mischief the Constitution seeks to remedy. There is no merit in this appeal, which we accordingly dismissed,” Justice William Ouko, one of the five judges that heard the appeal, ruled.

The IEBC opted not to appeal the verdict at the Supreme Court.

Chief Justice David Maraga has already highlighted the dilemma the IEBC is facing, noting that disputes arising from the political parties nominations are still pending in court.

“Even this morning, I allocated some of the cases arising from the nominations for hearing. Imagine if IEBC prints the ballot papers with the name of a candidate who is then disqualified,” he said on Tuesday a day after his deputy, Philemona Mwilu, raised similar concerns at the annual judges colloquium at the Coast.

The courts are also set to rule on another case filed by Nasa seeking to compel the electoral body to disclose mechanisms of the complementary system it seeks to opt for in the event the the electronic voter verification and vote transmission system fails.

In another suit, the High Court will also today decide on whether all the eight presidential candidates cleared by IEBC should take part in a media debate slated for Monday following an application by Abduba Dida.

President Uhuru and Raila have threatened to boycott the debate.

Riding majorly on the 2010 Constitution, the Judiciary has more that ever before asserted its authority in guiding the electoral process issuing rulings that has been turning points as the country heads to what is seen as one of the most challenging presidential contests in recent history.

For instance, the courts had a great influence in determine who takes part in the elections by affirming an amendment that barred party hopping dealing a blow to nomination losers.

“If an individual is not successfully nominated, his inability to shift his allegiance to another party within the time-frame spelled out by IEBC cannot be said to be a limitation of his rights,” Mwita said, while ruling to an application filed by the Council of Governors.

The Employment and Labour Relations Court, however, gave a lifeline to civil servants by allowing them to return to their jobs if they failed to clinch tickets in the primaries.
Kericho Judge Njagi Marete declared Section 43 (5) of the Elections Act that required civil servants interested in seeking electoral office to quit six months to the polls unconstitutional for lack of public participation.

“The court finds no evidence that there was public participation in the enactment of Section 43(5) of the Election Act. In the absence of the application of Article 118(1b) due to its ouster by the Sixth schedule, Article 10 (2a) was applicable and allowed a case for public participation,” he ruled.

The courts also twice extended deadlines for political party nominations allowing the two leading formations – Nasa and Jubilee – time to wiggle out of complicated logistical nightmares.

Candidates seeking the presidency were also beneficiaries of judicial intervention after Justice Odunga on May 26 dismissed a requirement that they submit 2,000 of their supporters in Excel format.

Ahead of the elections, the Judiciary has finalised its preparedness in handling disputes that may arise out of the process.

Chief Justice Maraga has already gazetted 92 Magistrates to preside over electoral disputes.

In addition Judicial and administrative officers will not be allowed to take leave after the month of July to ensure that the cases involving electoral disputes are expedited. During this time, security officers will also be deployed in Court to safeguard the dispute resolution processes and the welfare of judicial officers.