Two cases filed in court relating to the procurement of ballot papers and the audit of voters register have now put preparations for the August 8 General Election in jeopardy.
However, the electoral commission maintains it is on course to deliver a credible election.
With barely six months to go to the election, the High Court has put the electoral commission in a tight spot by making several rulings whose net effect has been to interfere with the strict timelines stipulated in the election law.
One such judgment delivered by Justice George Odunga decreed that all decisions made by the former Independent Electoral and Boundaries Commission (IEBC) headed by the immediate former chairman Issack Hassan since October 4, last year when they were kicked out of office are null and void.
This means the commission will have to review all such decisions.
But, speaking on Friday, IEBC Chairman Wafula Chebukati maintained the commission still had a lot of room for manoeuvre.
“There is still time for procurement. We will start afresh. Ballot papers will be the last thing we will need as per the timelines, way after nominations. And there are about five options in the procurement law and we will see which one to use,” he said.
If push comes to shove, the IEBC is likely to use direct procurement. Direct procurement is applied if there is no time for prolonged process.
In a judgment that quashed an award of printing papers to a Dubai-based company, Al Ghurair Print and Publishing, Justice Odunga said the commissioners’ decision was done illegally.
“In my view, once an office is declared vacant, unless there is a transition clause that deems the holder thereof to be still in office, it would, with respect, amount to an aberration to contend that the person whose position is declared vacant is still in the office. In my view, the declaration of a vacancy has the effect of compelling the holder of the office to vacate the office unless otherwise ordered by a court of competent jurisdiction. Once an office becomes vacant it is, in effect, empty and it cannot be contended that an empty office can make decisions.”
“Since the President had declared the offices vacant, the power and authority delegated to the members of the commission cannot be exercised in an acting capacity in circumstances where the Constitution has not donated or granted the mandate or competence,” Justice Odunga added.
The State has said it intends to appeal the decision.
The judge argued that a shoddy job may have ramifications in future.
“All the processes leading to the elections are subject to scrutiny and may well be grounds for nullification of elections. Therefore, to avoid such an eventuality, the preparations leading to the elections must meet the minimum standards articulated in Article 81 of the Constitution that the election system must be free and fair; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner,” he concluded.
This comes as the commission moves to have an updated register after the second phase of the mass voter registration, which will end on Sunday. In the coming days, the commission has its work cut out as it moves to consolidate the register. From tomorrow it will register all the collated data from regional offices. On Thursday, all registration data will be transferred to the commission’s headquarters at Anniversary Towers in Nairobi to be uploaded to servers, an exercise that should be completed by February 27.
Starting March 1, the IEBC will process updates and transfers before eliminating duplicates and reconciling data on the register, an exercise that is expected to go on until March 31.
Public verification will commence on May 10 and end a month later.
But even as Mr Chebukati exudes confidence that the commission is on course to delivering a credible election, it still has to contend with yet another court case filed by the Coalition for Reforms and Democracy (Cord) stopping audit of the voters register by audit firm KPMG.
The court has issued temporary orders stopping the audit exercise pending the outcome of the case.
The Orange Democratic Movement’s director of elections, Junet Mohamed, dismissed accusations levelled against Cord by the Jubilee coalition that the cases are tailor made to ensure the country does not go to the polls in August, opening a window for Cord to push for the formation of a caretaker government.
“What we are keen on is a credible process leading to election. We cannot close our eyes as illegitimacy happens. Why is Jubilee speaking for IEBC on preparedness?” he posed.