How IEBC gave out referendum tender in 2019

By Geoffrey Mosoku

The Independent Electoral and Boundaries Commission (IEBC) has already awarded a tender for printing ballot papers for the impending referendum, People Daily can report.

It has emerged that IEBC, which singlesourced a local firm to print ballot papers for by-elections in September 2019, had also included a provision for printing referendum materials.

In the deal entered between IEBC and De La Rue Kenya, EPZ Ltd, the commission included the printing of 20 million ballot papers at Sh397.4 million.

The electoral agency entered into a deal for tender No. IEBC/DP/02/2019-2021 with De la Rue on September 20, 2019, after abandoning a restricted tender.

The award was on ‘as and when required’ for a period from October 2019 to the end of 2021, suggesting IEBC had factored a possible referendum by end of this year.

And in another separate contract for tender No. IEBC/02 (B)/2019-2021 for supply and delivery of forms 35A on an A3 paper, the commission seeks to acquire at least 41,000 result declaration forms at Sh383 per page.

This means the IEBC will spend a minimum of Sh16 million if the result declaration forms will only be a single page for all the 40,833 polling stations across the country.

Yesterday, IEBC commissioner Boya Molu said he could not comment on the specifics of the contract but insisted that by single sourcing De La Rue, the commission had saved money.

“I can’t really tell the specifics as this is the work of the secretariat but I know that the commission got the lowest supplier who is a local firm.”

The commission’s Communications and Corporate Affairs Manager Tabitha Mutemi said the issue of money for printing ballot papers will have to be subjected to a budgetary process but confirmed that De la Rue will still print the papers.

“If a referendum is held this year, then De La Rue will be required to print the materials since it has a running contract till end of this year but that will be subject to budgetary processes,” Ms Mutemi said.

When the commission signed the deal, activist Okiya Omtatah wrote to the IEBC seeking information on who had participated in the restricted tender that had been floated initially.

Omtatah sought to know how and why the commission had settled on De la Rue that had not shown interested when the restricted tender was floated.

In his response dated November 24, 2019, IEBC chairman Wafula Chebukati said four firms; Ellams Product Ltd, Sintel Security Solutions Ltd, Hills Converters (K) Ltd and Kenya Literature Bureau, had applied. Ellam Products Of the four, only Ellams Products was found to be responsive in the preliminaries but was knocked out for allegedly failing to pass the technical evaluation stage.

“Therefore, the procurement was terminated on 27th August, 2019 and on 28th August, 2019, wrote to the Procurement Regulatory Authority seeking approval as there was urgency forward by-elections,” Chebukati said.

Already the commission has indicated it will require about Sh14 billion to conduct a national referendum should at least 24 county assemblies approve the BBI Constitution Amendment Bill 2020. So far, six county assemblies of Trans Nzoia, Siaya, Busia, Kisumu, Homa Bay and West Pokot have given their nod while that of Baringo has rejected it.

ODM Leader Raila Odinga has disputed the IEBC cash projection for a plebiscite saying the exercise may cost as little as Sh2 billion. A five-judge bench on February 10, 2021 restrained the commission from conducting the BBI referendum pending determination of petitions against the exercise.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita gave the temporary orders pending the hearing of seven petitions filed to challenge the BBI process.

“We believe it is in the public interest that appropriate conservatory orders be granted. Consequently, we hereby issue a conservatory order restraining IEBC from facilitating and subjecting the Constitution Amendment Bill 2020 to a referendum or taking any other action to advance the Constitution Amendment Bill 2020 pending the hearing and determination of the consolidated petitions,” ruled the judges.

The main petition was filed by economist David Ndii and four others. It was later consolidated with six other petitions including one filed by Thirdway Alliance.

The alliance, in its petition, which has since been dropped, claimed there was significant development in the referendum Bill following a press statement from the commission certifying the Bill had met the requisite threshold having been supported by more than 1 million registered voters and was submitting the Bill to each county assembly for consideration.

Ndii and company’s petition accuses Parliament of intending to pass laws that alter the basic structure of the Kenyan constitutional foundation, claiming Parliament lacks clear parameters to guide it on basic structure amendments in the exercise of authority.

“In the absence of clear guideposts to define the scope of Parliament’s authority to amend the Constitution, Parliament appears to adopt the approach that it enjoys an unlimited authority, a carte blanc, to consider any and all amendments to the Constitution,” say the five in court documents.

According to them, they are apprehensive that the approach is likely to lead Parliament to consider and adopt now and in the future amendments, which constitute essential features of the 2010 Constitution.

While the judges did not stop the Assemblies or Parliament from debating the proposals they said they had powers to intervene even at the tail end of the process. The case will proceed to a full hearing.