Verdict brings to an end manipulation of votes during tallying

The High Court on April 7th held that election results as declared by the Constituency Returning Officer at the constituency level was absolute and could not be varied in any manner by the IEBC. Only an election court reserved the power to overturn such results.

This approach, taken to its logical conclusion would mean that at the national level, the infamous exercise known as ‘tallying’ would cease to exist, closing a loophole that has been used in the past to ‘adjust’ and ‘rectify’ presidential election results.

It is interesting that while returning officers are entrusted with correctly calculating the winners of Ward, Women Representative, Member of Parliament, Senate and Governor contests, the Presidency requires people to alter and distort the results from constituencies before announcing the ‘official’ results. This has in the past resulted in a variance between official and actual results.

This argument was the basis which led three individuals, namely Maina Kiai, Khelef Khalifa and Tirop Kitur to petition the High Court to make a declaration that results announced by the returning officer shall be final and immutable and only an election court could alter such results.

The court agreed with them; the task of the national tallying centre was merely to add up what is remitted from the 290 constituencies and declare the resultant winner. Much to the surprise and dismay of many, the IEBC appealed the decision.

It is confusing why IEBC, a body that should be neutral and impartial, would challenge the interpretation of the law as handed down by the High Court whose duty it is to interpret and uphold the law. Why would IEBC insist on a particular interpretation? Article 159 of our Constitution provides that “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”

Why the IEBC would not be satisfied with the decision of a Superior court is puzzling. Before rushing to appeal, did the electoral body take into account the scenario that would ensue if it lost the appeal?

Would it not then appear that it had been ‘forced’ to do what it was reluctant to do? Would a reasonable man then perceive IEBC to be impartially implementing the Judicial pronouncement?

The very fact the there is an appeal lets the cat out of the bag. IEBC is simply not content to run elections as provided by the law, it appears certain forces would like to cling to a certain way of doing things that allows for possibility and leeway of alteration of results in the so called ‘tallying’.

This is why NASA, a coalition of parties which have in the past borne the brunt of the misuse of power by the national tallying centre, is pushing to have the constituency results binding. A lot of mischief will be avoided if constituency results are held sacrosanct and alterable only by an election court.

Error of transposition

While it is understandable that the national tallying centre may want discretion to rectify something as simple as an error of transposition, where a figure such as 131,100 may be erroneously transposed or read as 100,131, the key lies in ensuring rigour in the process at the constituency level to avoid and detect these type of innocent mistakes.

So far, it is fair to say that observing the goings on at IEBC, there is no clue that this is a body able to use its discretion wisely. This is why no such discretion should be given. We have already witnessed how the body awarded a tender to print ballot boxes to Al Ghurair, the very company given the tender in an earlier procurement process that a court of law had found un-procedural.

For the record, it is fellow bidders who successfully challenged the first tender award in court. True to character, IEBC simply waited until it ran out of time, then re-awarded the tender to the same company.

This is a body that is guaranteed to run out of the reservation unless we exercise utmost vigilance and the strictest and most precise of legal guidelines.

- Mr Sifuna is an Advocate of the High Court of Kenya