It’s universally accepted good practice for arbiters to recuse themselves from proceedings in which their close associations with any of the contesting parties will reasonably open doors to a likelihood of bias. Thoroughly conflicted and open to any influence that will benefit his political career, your average politician cannot be this reasonable man. Neither can a leading contestant in an election in which the arbiter, the IEBC, stands accused of bias. As such, until proven otherwise, their opinion on the ballot paper tender row must be accepted as nothing but hot air.
See, concerning the tender, we do not know who between Nasa, Jubilee and the IEBC is right. The only uncontested fact is that the president enjoys a warm relationship with an Al Ghurair, the brother to the proprietor of Al Ghurair Printing, the company at the centre of the ballot paper storm. This raises legitimate concerns of a likelihood of bias, the nature of their relationship regardless. Now Raila has also been accused of enjoying a similar relationship with PAARL Media, which relationship led him to front them as the printers.
Whether this is true or not, he obviously failed. As it stands, Al Ghurair is the printer. By virtue of the relationship the other Al Ghurair enjoys with the President, by virtue also of the fact that twice its tender to print has been cancelled only to be controversially re-awarded, and by virtue of IEBC enjoying the judicial mandate of awarding these tenders, it is them, the President and the electoral commission that are on trial. Not Raila or PAARL.
When the electoral commission was first flagged for violation tendering guidelines by Odunga J. vide Misc. Application No. 637 of 2016, it responded with another irregular award to the same printers. The Public Procurement Administrative Review Board nullified that award, only for the IEBC to return the same printers – this time handpicked under the pretence that there was no time. Now a link (potential) has emerged between the president and its chosen printers. And what has been its reaction to concerns of collusion? An initial deathly silence while the President’s party came out guns blazing to defend it and their man before, in typical boring Chebukati fashion, reiterating Jubilee’s sentiments as its defence.
Meanwhile a matter was in the Court of Appeal in which the Commission was challenging a High Court ruling which vested the powers of declaring the final Presidential results in a constituency on constituency returning officers. Lest we forget, while IEBC, like any other agency, reserves a right to seek an interpretation of the law, but it has no business challenging the interpretation once given by the Court. Ideally, not legally, the Commission is to implement the law, not haggle over what the law should be, especially so when its position is similar to that of government in a matter as important as a national election.
The message is simple. There appears to be a romance between the Commission and the incumbent. And while this romance could simply be an accident of rules of Joinder or simply the delusion of a people afraid of losing the election, there is enough case for implied bias.
An election is not an event; it is a process. To borrow from the words of Justice Odunga, all the processes leading to the elections are subject of scrutiny and may well be grounds for nullification of elections. Therefore to avoid such an eventuality, the preparations leading to the elections must meet the minimum standards articulated in Article 81 of the Constitution, that election system must be free and fair, transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
Yet of most concern is how the IEBC and Government are emphasizing a peaceful election at the expense of fair and credible one. And mainstream media has followed the cue demanding the head of anyone who questions the status quo and demands justice if it is going to disturb the peace.
World over, oppressive regimes will demonstrate their capacity for ruthlessness, condition the people into believing that peace is more valuable than justice then finish off by making the clamour for justice a crime. This is the pillar behind the persisting regimes of Recep Tayyip Erdogan, Paul Kagame and Yoweri Museveni. Citizens there know that a vote for anyone else is a vote for anarchy. It is this mentality that births slogans like “accept and move on”.