The electoral commission has stoked controversy with a public notice on a tender for the supply of election materials, including referendum result declaration forms.
While the invitation to tender for ballot papers, among other poll materials, is a routine undertaking coming a year to the next elections, the reference to referendum stuff has raised eyebrows given the pending Building Bridges Initiative (BBI) appeal.
The High Court, which nullified the BBI process hence scuttling a referendum fronted by President Kenyatta and ODM leader Raila Odinga’s allies, restrained the Independent Electoral and Boundaries Commission (IEBC) from any preparations on the plebiscite.
Although the pro-BBI camp has since appealed against the ruling, the order is yet to be lifted.
On Wednesday, in a paid up advert in the daily newspapers, IEBC invited interested firms to submit bids for the printing and delivery of referendum results declaration forms to be used at the constituency, county and national tallying centres.
The development angered BBI critics who accused the commission of acting in bad faith and pre-empting the outcome of the appeal.
Lawyers Dudley Ochiel and Ian Mwiti, who represented Dr Jack Mwimali, the 14th respondent in the BBI case at the appellate court, said the advert is mischievous as it runs contrary to the court order.
“We read mischief in the advert. The description of the items being tendered suggests that the commission is violating the orders it had sought in court,” Mr Mwiti said.
IEBC had petitioned the court of appeal which only waived the order that the commission could not function because it lacked quorum but barred it from preparing for a referendum.
“There is already a court order stopping the commission from taking any action in preparation for a referendum. But the commission has ignored it. It has gone ahead and advertised the tender. This was done in bad faith,” Mr Mwiti added.
Mr Ochiel said his client is disturbed by the advert because the orders in question were issued at the commission's request.
“We will be asking IEBC and the Court of Appeal a few questions about it in the coming days,” Mr Ochiel said.
He added the court had forbidden the commission from “dealing in any way with any issue that is subject of the appeal”.
Mr Mwiti noted that the move indicates that the commission is pre-empting the judgment of the court or preparing ground for an outcome that is favourable to the proponents of Constitution change.
Mr Elias Mutuma, who represented the Thirdway Alliance which was among the parties that successfully blocked the BBI, said the electoral commission is liable for contempt of court.
“The action is a blatant contempt of court, violation of article three of the Constitution on the duty to respect, uphold and defend the Constitution which the commission draws its existence from,” Mr Mutuma said.
In May, the High Court restrained the commission from subjecting the Constitution of Kenya (Amendment) Bill, 2020, to a referendum.
Five judges led by Justice Joel Ngugi also ruled the commission lacks quorum as stipulated in the law for purposes of carrying out referendum preparations, including verification of signatures.
On Wednesday, IEBC Chief Executive Officer Hussein Marjan argued the advert is part of the commission’s preparedness for the 2022 General Election.
“The tender is meant to source for a printer who will work with the commission in the next three years. We want a printer we will work with on need basis in that period,” Mr Marjan said.
The deal will be a three-year framework contract which means that the goods and services to be entered into will be requested on a need basis.
But Mr Mwiti said the three-year phrase was deliberately inserted in the advert to conceal a sinister motive.
None of the lawyers representing parties that support BBI responded to our calls or text messages left on their phones.
The commission is also seeking bids for the supply of ballot papers, register of voters, statutory election result declaration forms to be used at the polling stations, election declaration forms to be used at the constituency, county and national tallying centres.
