Six months to the election, the IEBC could be forced to return to the drawing board, raising grave questions about timelines.
It may have to restart key preparations for the August 8 poll, following a landmark court ruling on Monday that sent the commission into disarray.
It declared illegal all decisions made by former electoral commissioners during the three month transition following their resignation. It also nullified a Sh2.5 billion ballot papers tender.
This means key decisions could well be rendered null and void. They include award of tenders to audit the voter register, ICT regulations, four ward by-elections, ballot papers tender, staffing, the Integrated Election Management System, registration and ICT regulations.
In the ruling following a complaint by Cord, the High Court read the riot act to the IEBC for violating procurement laws and warned it will not be a “rubber stamp for a process that is clearly flawed”.
Judge George Odunga rubbished IEBC claims nullification of the lucrative tender to Dubai-based printing firm Al Ghurair could jeopardise election preparations, possibly resulting in violence.
“Although the IEBC alluded to post-election violence of 2008, it was not failure to conduct the elections that led to the same but the manner in which the same were conducted, which rightly or wrongly aggrieved some contestants,” Odunga said.
“This court’s mandate is to ensure the elections are conducted in accordance with the constitution and he law, and will not allow itself to be a rubber stamp for a process that is clearly flawed and whose result is unlikely to meet the constitutional and legal threshold.”
Odunga, is considered a no nonsense judge whose interpretation of the law has often rubbed Jubilee leaders the wrong way.
In his 145-page ruling, Odunga said once an office is declared vacant, as was the case with the former IEBC commissioners, they are deemed to have left office,
“Once an office becomes vacant, it is in effect empty and it cannot be contended that an empty office can make decisions,” Odunga ruled.
He declared the secretariat cannot execute any contract for the commission.
“In my view, section 134 (1) of the Public Procurement and Asset Disposal Act only empowers the accounting officer [Ezra Chiloba] to prepare and execute the contract. It does not empower him to award the tender,” he said.
The ruling threw the IEBC into confusion — its commissioners have been in office only three weeks.
CEO Ezra Chiloba took to Twitter and warned the country the court decision had “huge implications for the next elections”.
“Basically what Odunga’s judgment means is that all decisionsmade by IEBC in the last three months were null and void!” Chiloba said.
He expressed regret thatwould affect all decisions made from October 6, 2016, when PresidentUhuru Kenyatta declared vacant the positions of former electoral bosses led by Issack Hassan. He cited major decisions to be revisited.
“Fundamental departure from public sector governance practice is the idea that board members should be engaged in procurement
activities,” Chiloba protested.
On October 25, Hassan and his team supervised elections in Kalokol ward in Turkana, Nyacheki ward in Kisii, Mosiro ward in Kajiado and Sala ward of Tana River county.
But the ruling means those four ward by-elections, of which ODM won three, could be challenged.
Meanwhile, the Star has established Cord has withdrawn from out-of-court settlement negotiations with the IEBC about an independent audit of the voter’s register.
This is after it became apparent the commission would lose the case, following the High Court precedent set on Monday.
The Raila Odinga-led coalition argues the IEBC has a low threshold to audit the clearly flawed register.
Three months ago, a section of Jubilee MPs led by Aden Duale pledged to debate Odunga’s conduct in Parliament, claiming he is allied to the opposition.
That threat was denounced by the Law Society of Kenya and Chief Justice David Maraga, who said, “The judiciary will not be intimidated and blackmailed.”
In his ruling, Odunga also trashed claims nullification of the ballot paper tender will be costly to the taxpayer.
“This court will not partake in a ritual in which democratic rights of Kenyans are sacrificed on the altar of financial interests,” Odunga said.
An electoral process, he warned, must not only meet constitutional and legal thresholds but also carry with it the confidence of the
electorate.
The IEBC is racing against time, facing high hurdles and confronting tough choices in trying to meet strict demands of the Elections Act.
Pessimists have termed it mission impossible. The most pressing issue is the all-important and complex integrated ICT component, which hasn’t been acquired with 173 days to the polls.
The integrated electoral management system, for instance, will arrive too late for the critical, month-long biometric verification of
voters.