Why High Court got it wrong on presidential tallying case

This interpretation of the Constitution is clearly wrong because the duty to hold presidential elections in the 290 constituencies is vested in the chairperson of the IEBC as the presidential returning officer.

Last Friday but one, a three-judge bench of the High Court comprising Justices Aggrey Muchelule, Weldon Korir and Chacha Mwita delivered a landmark ruling that the presidential results announced by constituency returning officers are final in respect of the constituency and can only be questioned by the election court.

The case in question — Maina Kiai and 2 Others vs The IEBC and Another Nairobi High Court Petition No 207 of 2016 — was filed by human rights activists Maina Kiai, Khelef Khalifa and Tirop Kitur against the IEBC and Attorney General challenging the constitutionality of Section 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 are provisional and subject to confirmation by the Commission at the presidential elections tallying centre, which shall be located in Nairobi.

Double-edged sword

The Saturday Standard did well to publish this judgement in its headlines because, in my view, amongst all the recent decisions of the High Court on election matters, the Maina Kiai judgement is bound to be the most consequential during the coming presidential contest.

For better or for worse, the judgement is a double-edged sword. To those Kenyans who believe that the 2007 and 2013 presidential elections could have been tampered with by the electoral commission at the presidential tallying centre, the High Court’s declaration has struck a massive blow for them. However, anyone who has cared to read the Report of the Krieglar Commission on the 2007 General Election knows that there was no evidence of rigging at the presidential tallying centre and that any malpractice took place at the constituency level.

To understand the significance of this landmark decision, it is important to set out the political context and broad legal provisions in contention. Section 2 of the Elections Act defines a returning officer as a person appointed by the commission for the purpose of conducting an election or a referendum. The principal role of a returning officer is to uphold the principles of integrity, neutrality and transparency before, during and after the elections. In practical terms, the returning officer declares the results of an election and hands over the certificate to the winning candidate.

Under the electoral system established by the 2010 Constitution, there are three kinds of returning officers in Kenya — constituency (290), county (47) and presidential (1) returning officers. On the one hand, the Constituency Returning Officer (CRO) is responsible for elections of MPs and MCAs whilst a County Returning Officer is responsible for the election of senator, governor and woman representative. On the other hand, the chairman of the Commission is the returning officer in the presidential election.

Thus, at the end of the electoral process, the CRO declares the winners for National Assembly and County Assembly whilst the IEBC chairman declares the presidential results and hands over the certificate to the winner.

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 malpractice are put in place, including the safekeeping of election materials.

Mistaken interpretation

The Elections (General) Regulations, 2012 were made by the Commission partly to 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 MPs and MCAs vests in a constituency returning officer; the country returning officer is responsible for holding elections for governor, senator and woman representative whilst 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.

Viewed against this background, the Maina Kiai judgement makes interesting reading. In my view, this judgement is based on a controversial and mistaken interpretation of Articles 86 and 138(2) of the Constitution. 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 constituency returning officer 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 constituency returning officer to announce final presidential election results because the mandate vests in the chairperson of the Commission. 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 the Commission.

It is not easy to understand how any word or phrase in Articles 86 and 138(2) of the Constitution are capable of being interpreted to confer upon constituency returning officers the mandate of declaring final presidential results. To the contrary, Article 138(1)(a) of the Constitution clearly vests the mandate of declaring the final result of presidential election in the chairperson of the Commission.

Moreover, pursuant to Section 38 of the Elections Act, the Commission’s chairperson is the returning officer who holds the presidential elections whilst under Regulation 87(8) the chairperson shall issue and deliver a certificate to the candidate who has been elected President.

In short, whatever political sense might exist to ensure that the results declared by the constituency returning officer are final in respect of the constituency, it is wrong and untenable to cite Articles 86 and 138(2) as justification for nullifying Regulations 83(2) and 87(2)(c) for being unconstitutional.

Given the ethnic homogeneity of majority of polling centres in Kenya, presidential elections are susceptible to manipulation at constituency level. In fact, returning officers are the hands through which the integrity of the election process is upheld or compromised. In a presidential election, 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.

Heavy workload

As the returning officer at the base of the verification pyramid, CROs carry a heavy workload and lawyers who practice 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.

If, in this complex mix of things, the High Court holds that the presidential results declared by the CROs are final rather than provisional, the Commission will have no means whatsoever to curb wilful or inadvertent electoral malpractice as required of it by Article 86 of the Constitution.

Accordingly, my honest view is that contrary to its noble objectives, the Maina Kiai judgement will promote rather than eliminate electoral malpractice in presidential elections.

Finally, from a practical point of view, three things are worth nothing. First, the role of IEBC chairman as the returning officer has been stripped of any practical value as all he would now have to do is to add up the results announced by returning officers in the 290 constituencies and announce the winner.

Secondly, there may be no practical need for IEBC to purchase an expensive system of results transmission because Form 37 signed by CROs showing results of each presidential candidate would be final henceforth. Thirdly, there would be no need for a presidential elections tallying centre because IEBC can as well add in its offices the results from the 290 constituencies and declare the winner.

The writer is a constitutional lawyer