On Friday, July 7th 2017, the High Court nullified the tender for the printing of presidential ballot papers for the August 8, 2017 presidential election to, Al Ghurair Printing and Publishing Company.
In its ruling, a three-judge bench hearing a judicial review filed by the opposition National Super Alliance (NASA) found that the Independent Electoral and Boundaries Commission (IEBC) failed to conduct adequate public participation in the tender process, a move that they said goes against constitutional requirements. Further, the bench found IEBC’s decision to meet representatives of Jubilee and NASA at the exclusion of other parties fielding presidential candidates was inappropriate.
The court ordered the IEBC to commence the procurement process afresh.
NASA had also argued that President Uhuru Kenyatta has a relationship with Al Ghurair, which influenced the award of the tender to the firm. The court ruled that the evidence provided to support this claim fell short of the evidentiary standard required to prove it.
High Court judges Joel Ngugi, George Odunga and John Mativo found that public participation in the direct procurement process was necessary for free, fair elections.
In response to the court ruling, President Uhuru Kenyatta warned the Judiciary against what he considered a plan to frustrate the IEBC in order not to conduct the General Election on August 8th.
The President said Kenyans would not accept any attempt to postpone the polls from the date specified in the Constitution.
Speaking at a rally in Baringo County on Sunday, 9th July, President Kenyatta said the Judiciary should not take them for fools for being silent as the courts make decisions that could lead to the postponement of the elections.
(On NTV's talk show 'Press Pass' the next day, commentator Patrick Gathara pointed out that the 2013 General Elections were not held on the day specified in the Constitution, but on a day set by IEBC following a court ruling.)
"I want to tell those in the courts that because we have respected you for a long time we are not fools.
We cannot accept the courts to be used by those not interested in the elections to frustrate IEBC," said the President.
The President said it was strange that the IEBC had been allowed to go ahead with printing ballot papers for other elective positions but not for the president.
Chief Justice David Maraga, in his Twitter handle on the same day, termed the President's accusations as unfortunate.
"I would not ordinarily respond to statements made by politicians in the course of campaign activities, but these accusations are particularly unfortunate, based that they are on completely wrong premises."
The CJ said that he had at no time asked the IEBC not to proceed with the printing of ballot papers, contrary to statements by Deputy President William Ruto in Baringo on that Sunday.
"The comments I made in Mombasa and elsewhere, which were either deliberately or inadvertently taken out of context, were in reference to the courts' efforts to expeditiously clear the numerous petitions arising from the party primaries in order not to inconvenience the printing of ballot papers," said Maraga.
He added: " I have always been at the forefront of defending the cardinal principle of decisional independence of judges, and at no time have I ever directed any judge or judicial officer on how to determine the cases before them."
On Monday 10th July, Jubilee Party leaders accused judges who handled the tender case of conflict of interest.
The Jubilee leaders said that Judge Odunga’s wife is Siaya Senator James Orengo’s niece while Judge Ouko is related to NASA presidential candidate Raila Odinga's wife, Ida.
Speaking at the party’s headquarters in Pangani, Nairobi, the leaders led by Secretary-General Raphael Tuju said that Judges George Odunga and William Ouko should have recused themselves due to conflict of interest.
The IEBC appealed the High Court decision on the ballot paper printing tender, arguing that the judges erred in finding that public participation is a mandatory precondition to direct procurement conducted as provided under the Public Procurement and Assets Disposal Act.
On Thursday, the 20th of July, the Court of Appeal overturned the High Court judgement and allowed the IEBC to proceed with the printing.
The Court of Appeal said the High Court decision did not take into consideration the constitutional timelines within which General Election must be held. The five-bench judge also ruled that public participation is not a requirement in direct procurement, which was the procedure used by the IEBC in awarding the contract to Al Ghurair.
The appellate judges did, however, agree with the High Court that newspaper cuttings are insufficient proof of a meeting between President Uhuru Kenyatta and Al Ghurair bosses and that such a meeting influenced the award of the tender.