IEBC just lost last chance to be credible arbiter in election

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Maina Kiai by Maina Kiai
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The procurement scandal around the tendering for the printing of ballots to Al Ghurair Printing and Publishing company from Dubai speaks volumes. As the maxim goes: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck!” Something shady is going on and we may be the worse for it on August 8.

It is now clear that, legally or not, the Independent Electoral and Boundaries Commission was determined to grant Al Ghurair this contract. We can speculate about IEBC’s reasons, but ultimately, it will be responsible if our fervent prayers for peace do not work.

Keeping in mind that democracy is about certain processes and uncertain results, while autocracy is about uncertain processes with predictable results, consider the chronology of this scandal.

On October 18, 2016, the IEBC awarded the tender to Al Ghurair. South Africa’s Paarl Media Group appealed to the Public Procurement Administrative Review Board on November 7, 2016. The Board, chaired by Mr Paul Gicheru, who has an international warrant of arrest from the International Criminal Court for tampering with witnesses, ruled in favour of Al Ghurair on November 30, 2016.

DONE ILLEGALLY

Cord then sought judicial review in the High Court against the Board’s decision. On February 13, 2017, Judge George Odunga found that the award of the tender had been done illegally and irregularly and ordered IEBC to restart the tendering process.

On February 14, 2017, the IEBC filed an urgent notice of appeal against Judge Odunga’s decision, but then decided to drop the appeal on February 23, 2017. In the meantime, Al Ghurair filed suit to stop any new tendering pending the hearing of its appeal. On March 9, 2017, Judges of Appeal Alnashir Visram, Wanjiru Karanja and Jamila Mohammed refused to stop a renewed tendering process which Al Ghurair had sought.

The IEBC could have re-advertised then, with ample time for a credible process leading to a non-controversial decision, making their current protestations about lack of time incredibly dishonest!

Al Ghurair appealed the High Court decision, with its position supported by the IEBC and the Public Procurement Administrative Review Board. The Court of Appeal ruled on April 26, 2017 with Judges Daniel Musinga and Agnes Murgor ruling against the appeal. Judge Gatembu Kairu dissented in favour of Al Ghurair.

AN ANNOUNCEMENT

Six weeks after that last decision, and after lots of dithering and who knows what else, on June 9, 2017, the IEBC announced that it was single-sourcing the contract to (drum roll) Al Ghurair Printing and Publishing!

Why did the IEBC even bother to tender if they knew who was going to get the contract? Heck, why bother holding elections if the winner is already pre-determined? It will save us billions of shillings that could be better spent, or looted.

Is there any organisation in Kenya more effective at self-mutilation than the IEBC? No other body wastes credibility and legitimacy quite so fast and effectively. It would be comical were it not that the IEBC is the single most important factor in determining whether we will have real peace and stability, or we will have chaos and mayhem after the elections.

And on matters credibility, it does not help when the person occupying the presidency, and also a candidate, berates us for questioning the IEBC and directs us to respect it. Legitimacy and credibility are not by-products of inanimate offices and positions! No, these are earned, by being transparent, and by having predictable and participatory processes.

NO QUESTIONS

You know the IEBC is in trouble when P.L.O. Lumumba, suo moto or otherwise, defending it on NTV AM Live, implying that the Constitution required us to not ask questions about procurement or the functioning of the IEBC.

But as any first year constitutional law student knows, the most critical aspect of our Constitution is accountability, integrity, public participation and transparency. In fact the Constitution demands vigilance from all of us to ensure that we do not return to the dark old days!

It is far easier and less stressful to do the right thing, honestly, transparently and with stakeholder participation than to try to bulldoze a position. We are being driven down a path that could really haunt us, despite our prayers.

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