The landmark judgement in Maina Kiai and 2 Others vs. the IEBC and Another Nairobi High Court Petition No. 207 of 2016 filed by human rights activists Maina Kiai, Khelef Khalifa and Tirop Kitur against the IEBC and Attorney General declared, inter-alia, that the presidential results announced by constituencies returning officers are final in respect of the constituency and can only be questioned by the election court.
The three petitioners had challenged the constitutionality of Sections 39 of the Elections Act and Regulations 83(2), 84(1) and 87(2)(c) of the Elections (General) Regulations 2012 that cumulatively state that the results in presidential elections declared by constituency returning officers (CRO) are provisional and subject to confirmation by the Commission at the presidential elections tallying centre which shall be located in Nairobi.
It is important to note that voting in Kenya takes place in polling stations under the supervision of presiding officers. The Commission is required by Article 86 of the Constitution to ensure, inter-alia, that the voting system is simple, accurate, verifiable, secure, accountable and transparent.
The Commission shall also ensure that appropriate structures and mechanisms to eliminate electoral malpractise are put in place, including the safekeeping of election materials. The Elections (General) Regulations, 2012 were made by the Commission partly go give effect to the provisions of and principles set out in Articles 81 and 86 of the Constitution read with Sections 38 and 39 of the Elections Act.
In plain language the legal duty of holding elections for members of the National Assembly and County Assembly vests in a CRO; the county returning officer is responsible for holding elections for governor, senator and woman representative while the chairperson of the Commission is the returning officer in respect of presidential election. In the end, each of these returning officers is responsible to the relevant court for the elections they have conducted. Given the ethnic homogeneity of majority of polling centres in Kenya, presidential elections are susceptible to manipulation at constituency level.
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In fact returning officers are the hands through which the integrity of the election process is upheld or compromised. In a presidential poll the fact that the results declared at constituency level are subject to verification and confirmation by the commission is a powerful deterrence against fraud and wilful malfeasance by returning officers.
The fact that Article 138(2) requires an election to be held in each constituency if two or more candidates for President are nominated has been interpreted in the judgement to mean that the CRO is vested with the mandate to hold presidential elections in his or her constituency.
This interpretation is clearly wrong because the duty to hold presidential elections in the 290 constituencies is vested in the chairperson of IEBC as the presidential returning officer which is the real reason why the presidential results declared by constituency and county returning officers are deemed provisional.
There is no statutory or constitutional mandate for a CRO to announce final presidential elections because the mandate vests in the chairperson of the Commission and so the role of CRO is merely facilitative.
As regards Article 86 of the Constitution the Judgement interprets the role of CRO as conclusive for purposes of verifying the results and accountability of presidential elections.
This interpretation is clearly untenable because in a presidential election the accountability and mandate of final verification of results can only vest in the returning officer who is answerable to Supreme Court for any attendant dispute. Logically, if the result declared by the CRO is final then a petitioner in a presidential dispute would have to sue each of the 290 CROs rather than the chairperson of IEBC.
As the returning officer at the base of the verification pyramid CROs carry a heavy workload and lawyers who practise elections law know that they often make serious mistakes some on account of collusion but mostly as a result of fatigue and sheer incapacity to supervise tallying of six elections simultaneously.
Accordingly, my honest view is that contrary to its noble objectives the Maina Kiai judgement will promote rather than eliminate electoral malpractise in presidential elections.
- The writer is a constitutional lawyer. kibemungai@yahoo.com
