Activist Okiya Omtatah sues IEBC in row over ballot papers tender

A case has been filed against the electoral agency on accusations of withholding information on two contracts for the supply of ballot papers for next year’s elections.

Activist Okiya Omtatah claims there is a plan to award De La Rue Kenya and EPZ Ltd the contract to print the ballot papers without a competitive procurement process as required by law.

He wants the Independent Electoral and Boundaries Commission (IEBC) stopped from renewing the contracts awarded in 2019. In a petition filed at the High Court on Friday, Mr Omtatah claims IEBC has already signed the deal and wants its details made public.

Mr Omtatah says IEBC is in violation of public procurement rules that stipulate that all public entities must advertise their tenders through the Public Procurement Information Portal.

“Contrary to its obligations under the law to publish the information, the commission has refused to release the copies of the two contracts which it holds yet the petitioner (Mr Omtatah) requires the information to defend the rights enshrined in the constitution,” Mr Omtatah says in court papers.

Extremely urgent

He argues that the matter is extremely urgent because the contracts are about to expire and there are indications that the commission is planning to extend them to cover the 2022 General Election.

The commission signed two restricted tenders with De la Rue and EPZ Ltd two years ago. The first was for the supply and delivery of forms 35A, which was signed on October 31, 2019.

The second was for the supply and delivery of ballot papers, statutory forms and register of voters, which was awarded on September 20, 2019.

The two contacts were to last until 2021 and Mr Omtatah believes the commission will have them extended. He wants the court to stop the deal which he believes is irregular.

He wants the IEBC to divulge information as to who participated in the restricted tender that had been floated initially.

Mr Omtatah also wants to know how and why the commission had settled on De la Rue, which had not shown any interest when the restricted tender was floated two years ago.

He claims IEBC is in talks with De La Rue for a direct award of the lucrative deal.

Mr Omtatah wants minutes of the meetings at which the restricted tender was abandoned in favour of direct procurement, justifications for the direct procurement and why the same was not advertised as a restricted tender and the identity, qualifications, and the number of firms which participated in the restricted tendering process.

He also wants information on the prices each firm quoted and related information, the cost of the supplies under direct procurement, copies of the notification and acceptance letters for the two tenders.

The petitioner argues that he was forced to seek the intervention of the court because the commission has acted in bad faith and in an unconstitutional and unlawful manner.

Public evaluation

“The commission has sat on its hands and decided not to act as required by law and provide information requested as soon as possible. Its intention is to frustrate the public evaluation of the contracts and derail the constitutional right and duty of the public to be involved in a matter of significant public interest,” he says. Mr Omtatah wrote to the commission in February this year but the information was not provided.

A month later, he sought the intervention of the office of the Ombudsman but the request fell through.

The commission single-sourced the contract to print ballot papers for the by-elections in September 2019.

Four firms — Ellams Products Ltd, Sintel Security Solutions Ltd, Hills Converters (Kenya) Ltd and Kenya Literature Bureau, had applied in the initial tender.

Only Ellams Products was found to be responsive in the preliminaries but was knocked out for allegedly failing to pass the technical stage, forcing the commission to terminate the process.