On Friday, July 7, the opposition alliance, the National Super Alliance (Nasa), won another court battle with the Independent Electoral and Boundaries Commission (IEBC) when the High Court ruled that the contract to print ballots for the August 8 presidential polls should be nullified (ballot printing for the parliamentary, county and other elections is seemingly unaffected).
The $24m contract with Dubai-based Al Ghurair was deemed to have been awarded through an insufficiently-transparent tendering process. Lawyers for the IEBC are reportedly going to challenge the ruling which could lead to the election being delayed.
The commission’s chairperson, Wafula Chebukati, said “The judgement has far-reaching implications on the elections.”
The court ruling, meanwhile, stated that the accusation by Nasa that President Uhuru Kenyatta’s relationship with Al Ghurair had influenced the awarding of the tender lacked evidence. Rather, the main issue appears to be that there was not enough public participation in the tendering process.
This victory for Nasa comes after it successfully took the IEBC to the High Court in April in order to ensure that results announced at the constituency level are final – something the alliance had pushed for to stop any chance of rigging at the national tallying centre.
The decision was upheld in June after the IEBC launched an appeal. Such victories bolster the view that the judiciary can be relied upon to act independently and should help boost the credibility of the results when the elections are held – both of which augur well for the legitimacy of the process.
This, in turn, would hopefully mean that the final results will be accepted without calls for protest or violence.
However, not all politicians are seeing matters in this light.
On Sunday, July 9, Reuters reported that Mr Kenyatta warned Chief Justice David Maraga not to undermine the public’s confidence in the judiciary.
“I want to tell those in courts, we have respected you. But do not think respect is cowardice. And we will not allow our opponents to use the courts and to intimidate the IEBC, thinking they will win using the back door,” Mr Kenyatta told a rally in Baringo.
Mr Maraga fired back the same day by issuing a statement saying, “When political leaders cast aspersions on the administration of justice based on a misinterpretation of my statements, it has the potential to impair public confidence in our courts, and this concerns me a great deal.”
Clearly, Mr Maraga would not like his actions to be confused with cowardice either.
The threat of an election that could be dismissed as dubious is higher than the threat caused by an election delay.
Thus, the decision by the court and the fact that Nasa cannot in future claim that it was not heard prior to the polls should boost the legitimacy of the outcome and reduce the threat of post-election violence.
Furthermore, the independence of the judiciary and the ‘keeping-in-check’ of the IEBC are also positive.
Does this development mean that Nasa’s candidate, Raila Odinga, is in the ascendency? Probably not.
While he has been closing the gap in the polls, stirring up trouble for the electoral process in this way could encourage more of Jubilee’s voters to go out and cast their ballots – in an act against him rather than for Mr Kenyatta.
While it could motivate Nasa voters too, if turnout is high in general, Jubilee has the numbers advantage.