Areas where polls may be postponed

By WAHOME THUKU, GEOFFREY MOSOKU and PETER OPIYO

The electoral body is at a crossroads on how to deal with late-coming court orders requiring it to include or remove names of some candidates from ballot papers, the bulk of which have already been printed.

Ordering a fresh print, say of parliamentary ballot papers in a given constituency would mean placing fresh orders, at extra cost. But it isn’t even the cost alone which is worrying Independent Electoral and Boundaries Commission (IEBC), but the logistical nightmare of having fresh ballot papers printed abroad and freighted into the country in time for the elections in two weeks.

IEBC Chairman Ahmed Isaack Hassan explained the commission was contemplating taking up the matter to the Court of Appeal for direction. If this were to happen, then it will be today.  However, legal experts point out that the only way IEBC could be fair to the applicants and also respect the court orders, is to skip the elections on specific seats in given constituencies until after the main race.

Fears are now rife that elections for parliamentary seats in Kuria East and Bahati constituencies may not take off on March 4 just like the Governor race in Kakamega County where fresh court orders were given on Friday.

According to IEBC, there are also disputes over different categories of seats in Siaya and Nakuru Counties as well as Naivasha and Budalang’i, which the court has given orders for the commission to prepare fresh ballots bearing the names of given candidates.

The challenge is compounded by the fact that the commission has already finalised the contents of the ballots, some of which have already been shipped into the country from the UK by the printing firm Smith and Ouzman.

Post-pone elections

The commission is now raising the red flag, saying if it has to abide by the court directives, it would have to postpone elections in the affected areas to enable it prepare new electoral materials. This would come with a heavy penalty for the taxpayers who would have to foot for both cost of destroyed ballots and the new consignment, which ideally should be in the country early enough for distribution to different regions.

Hassan denied IEBC was disobeying court orders but pointed out the difficulties in complying with them given the time constraints and cost implications.  “We believe in the rule of law and as such, we will always obey court orders. However, the circumstances we are in makes it very difficult to enforce the orders,” he explained.

“We’ll have to destroy the ballot papers, but we don’t have time, so it would be very difficult.”  Hassan said the IEBC is now contemplating seeking guidance from the Court of Appeal on how to handle the matter.

“We may be forced to go to Court of Appeal so that the court can give direction on how to handle the matter,” Mr Hassan told The Standard.

The genesis of the problem is the political party nominations held last month, which were marred by irregularities and confusion.

Over 115 complaints were filed before IEBC Dispute Resolution Committee challenging the conduct and the results of the primaries.

More than 50 cases proceeded to the High Court, challenging the decisions of the committee.

This transpired as IEBC was racing against time preparing the ballot papers and other materials having contracted the British printing firm.

Pending his appeal

While the High Court rejected some of the cases, in others it ordered IEBC tribunal to sit again and hear the complaints afresh. As late as last week, some of the aggrieved candidates were still getting orders requiring the commission to include them in the ballots. This means IEBC is required to change the already printed ballots, to add names of the candidates.

And Even as Isaack undertook to generally obey court orders on Sunday, he was clear the decisions posed a logistical and financial nightmare for the underfunded electoral body and may not be complied with.

More than five candidates have won cases on the January political parties’ primaries and secured orders compelling IEBC to include their names on the ballot papers with only two weeks to the elections.

One prominent case involves a dispute over the nomination of The National Alliance candidate for the Kajiado governor seat Mr Taraiya ole Kores. After being nominated by TNA and cleared by IEBC, the commission prepared the ballot papers with his name included. 

But his opponent Mr Tipape Naini filed a petition against the nomination arguing that Kores’s degree was from a Costa Rican university not recognised in Kenya.

Three judges set aside the nomination and ordered that Kores should present his papers to Kajiado County’s returning officer, Mr Tom Mboya, who would then reconsider them in the light of the new developments and make a decision.

Kores went back to the High Court and asked for orders suspending the ruling, pending his appeal. He claimed his right to participate in the polls would be violated if his name were omitted. However, Commercial Court Justice Eric Ogola declined to suspend the order saying it would amount to reverting to the earlier ruling of the three judges of the Electoral Court (Judges Isaac Lenaola, David Majanja and Mumbi Ngugi).

“We had to remove the name of Kores and this had heavy cost implications. We had to pay twice since the already printed ballot papers had to be destroyed,” said Isaack.

Another source of contention is the Kuria East Parliamentary seat. The High Court has ordered the IEBC to reconsider a complaint filed by ODM aspirant Mr Julius Chacha Mabanga in the ballot papers.

Another case

The commission had earlier cleared his rival, though Chacha claims he had received direct nomination by ODM after the failed party primaries in the area in January. Mabanga went to the High Court after the IEBC tribunal dismissed his complaint. The court ordered the IEBC to listen to his case once again. Mabanga claims IEBC has refused to obey the court order to listen to his complaint. Another case involves the TNA candidate for Siaya County’s Senate seat Mr Ooro Yusuf Odongo who had been denied an opportunity to file his complaint with the IEBC Dispute Resolution committee. Justice Ogola ordered IEBC to include his name in the ballot papers saying denying him the right to participate in the elections would prejudice the rights of his supporters. On February 7, the High Court in Nakuru issued temporary orders stopping businessman Kimani Ngunjiri from contesting Bahati Parliamentary seat on a TNA ticket on the ground he had earlier been declared bankrupt.

Justice Anyara Emukule issued the orders following an application by two voters, Mr David Kimondo and Mr Geoffrey Njenga. By then, he had already been cleared by the IEBC, which was preparing to print the ballot papers with his name included.

The judge directed the two voters to file additional papers and to appear before the court on February 12, but on that day the two voters withdrew their case against Kimani.

Elsewhere, Independent candidate Mabel Skith Muruli got a High Court order last week directing the IEBC to include her name in the list of governor candidates for Kakamega County.