A judge yesterday declined to refer a case challenging the award of a voter register audit tender to Chief Justice David Maraga.
The tender was awarded to KPMG. The IEBC wanted Odunga to bow out of the case over concerns that he would deliver a decision similar to the ballot paper case. In the earlier case, Odunga quashed the Sh2.5 billion tender for the supply of ballot papers to be used in this year’s polls. He also directed that the IEBC start the process afresh in compliance with the Constitution.
Justice George Odunga ruled that the case doesn’t qualify to be heard by more than one judge. He said the Independent Electoral and Boundaries Commission has strict timelines and referring the matter to the CJ would drag the case.
“This matter does not meet the threshold to have it heard by a Bench of Judges. I decline to refer this matter to the CJ as it doesn’t raise substantial issues in law,” he said.
Odunga, however, directed the matter be placed before presiding judge of the Constitutional and Human Rights division Chacha Mwita so the case is concluded. Odunga said he considered the application and the submissions by IEBC and noted the issues raised do not call for disqualification of a judge.
“However, a judge may on own motion decide to refer a matter pending before him or her to another judge in the interest of justice without necessarily recusing himself from the matter. It is not always that a judge may only refer a matter to another judge upon recusing himself or herself. Such matters occur quite often and there is nothing unusual about it,” he said.
Odunga said if the matter were to be heard by a different judge of similar jurisdiction and a different decision is arrived at, there would be two conflicting decisions of the court and that the perception created would be that the IEBC chose a judge who was sympathetic to its cause.
“If that were to happen, the citizens of this country would be led to believe that justice depends on a particular judge rather than the rule of law and that belief would bring the whole judicial process into disrepute and embarrassment,” he said.
Cord claims that in awarding the tender, the IEBC proceeded without consultation or engagement with all players, including political parties, in designing the criteria used for the audit. It says the audit of the register of voters is clouded in secrecy and lacks accountability.
