Presidential election petition calls for Solomonic wisdom in ruling

“The responsibility of IEBC to deliver a credible and acceptable election is so grave and so awesome that it must approach and execute it with absolute fealty, probity and integrity. IEBC must be truly above suspicion and command respect from the people of Kenya for whom it acts. Much depends on it, indeed the present and future peace of the country.”

This prophetic announcement was made by the Court of Appeal on June 23rd when it decided that the Independent Electoral and Boundaries Commission (IEBC) chairman had no power to change the results of the Presidential Election. His role was limited to receiving results from the 290 Constituency Returning Officers, tallying and announcing the results, and declaring the winner.

This decision of the Court of Appeal now lies squarely at the heart of the 2017 Supreme Court Presidential petition. There were 40,833 polling stations across the country. According to IEBC, the Presiding Officers in these polling stations had the responsibility of transmitting results, in Forms 34A, to the Constituency Returning Officers in the 290 constituencies. The 290 Constituency Returning Officers were tasked with receiving these Forms 34A from Presiding Officers.

According to IEBC, this process, the transmission of Forms 34A to the Constituency Tallying Officers, did not have to be electronic. And in any case, this process could not be electronic in all polling stations due to network challenges in 25 per cent of the polling stations.

According to IEBC, the Constituency Returning Officers were to transfer the information in Forms 34A to one Form 34B. They would then verify, tally and announce the total results each presidential candidate garnered in the constituency. The Constituency Returning Officers would then transmit the Form 34B electronically to the National Tallying Centre. If only the matter was that simple.

Regulation 39 (1A) (a) of the Election (General) Regulations provides that “for purposes of a Presidential Election the Commission shall electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the Constituency Tallying Centre and to the National Tallying Centre.”

In my opinion, 'the prescribed form' for results issued by a Presiding Officer is Form 34A. This Form 34A should have been transmitted electronically by each Presiding Officer to both the Constituency Tallying Centre and to the National Tallying Centre.

Article 138 (3) (c) of the Constitution provides that “in a Presidential Election, after counting the votes in the polling stations, IEBC shall tally and verify the count and declare the result”. The Court of Appeal relying on this provision of the Constitution pronounced that “the lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.”

IEBC admits in documents filed at the Supreme Court that the numerical results displayed through the electronic public portal were provisional and had errors. A case in point is the final tally of rejected votes in the Presidential Election.

According to the electronic public portal, the total rejected votes were over 400,000. In the final results declared by IEBC in Form 34C the total rejected votes were just over 80,000. Did the transmission of the Presidential Election results comply with the law? Did the method of transmitting the Presidential Election results affect the outcome of the result? Was the primary database for electronic transmission of the results of the Presidential Election the 40,833 polling stations, the 290 constituencies, Forms 34A or Forms 34B? The seven Supreme Court Judges will decide. I wish them Solomonic wisdom.

 - The writer is an advocate of the High Court of Kenya.

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