November 22nd 2017

Top Stories / National

IEBC wins court petition and allowed to print ballot papers

The commission said the judges erred when they assumed the constitutional function and autonomy of the IEBC to set operational programmes, including the timetable for procuring election materials.

By Free Press Reporternewsdesk@kenyafreepress.comThursday, 20 Jul 2017 12:02 EAT

Court of Appeal judges, from left, Jamila Mohammed, Alnashir Visram, Erastus Githinji, Roselyne Nambuye and Prof James Otieno Odek deliver a ruling today.

The Court of Appeal has overturned a High Court judgement blocking Al Ghurair of Dubai from printing presidential ballot papers.

The appellate judges, however agreed with their High Court counterparts in rejecting claims that President Kenyatta met Al Ghurair officials and that he influenced the awarding of the tender.

The five-judge bench ruled that the High Court exercised its discretion wrongly without regard to constitutional timelines within which the General Election – presidential poll included – must be held.

The judges said the lower court erred in requiring Independent Electoral and Boundaries Commission (IEBC) to mandatorily conduct public participation before resorting to direct procurement.

“The trial court erred when it imposed requirement for public participation”, the judges ruled.

They also ruled that the High Court ruling did not take into consideration the right of the million Kenyans in exercising their right to free, fair and regular elections based on universal suffrage.

The High Court, they said, was right in holding that newspaper cuttings were not sufficient to prove that the President met directors of the firm. “Such articles remain hearsay unless the author appears in court and is interrogated on the authenticity of the article,” they said.

NASA, they said, should have also provided unmistakable evidence to prove that during the alleged meeting, the ballot printing tender was discussed. The court has not found any such evidence, they ruled.                       

They also agreed with the High Court decision converting judicial review to a constitutional petition. The IEBC had appealed the nullification of the tender.

High Court judges Joel Ngugi, George Odunga and John Mativo had made a finding that the commission had failed to engage the public in awarding the tender.

They had directed the IEBC to start the process afresh and come up with a framework for ensuring public participation.

In the papers filed at the Court of Appeal, the IEBC had argued that the judges made an error in law in finding that public participation is a mandatory precondition to direct procurement conducted as provided under the Public Procurement and Assets Disposal Act.

The commission is also dissatisfied with the order directing it to craft a programme of public participation to operationalise Article 10 of the Constitution. 

“By the said finding, the judges were, in effect, directing IEBC to usurp Parliament’s role of legislating,” IEBC had argued. 

The commission said the judges erred when they assumed the constitutional function and autonomy of the IEBC to set operational programmes, including the timetable for procuring election materials.

The IEBC says the High Court judgment split the tender in contravention of the procurement Act.

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