Let Supreme Court clear opaqueness of presidential tally

Supreme Court Judges during the BBI case. [Collins Kweyu, Standard]

Azimio presidential candidate Raila Odinga and his running mate Martha Karua exhibited statesmanship and political maturity by opting to challenge the August 9 presidential election results through legal channels.

The Azimio La Umoja One Kenya coalition's legal team will present its petition at the Supreme Court, in what promises an interesting legal tussle before seven-member bench led by Chief Justice Martha Koome.

In his first public reaction to the declaration of William Ruto as President-elect by IEBC chairperson Wafula Chebukati, Raila termed the figures announced, null and void. He said Azimio coalition is pursuing all available constitutional options to invalidate the pronunciations. One key bone of contention expected to feature prominently is whether Chebukati had shown disregard to the Constitution by announcing results unilaterally and not supported by all commissioners - the plenary.

Also expected is the claim that the chair was the only one who accessed the presidential tally and only informed the commissioners on the same without permitting any discussion of the results.
Four dissenting IEBC commissioners - Vice chair Juliana Cherera, Francis Wanderi, Justus Nyang'aya and Irene Masit - disowned the results announced by Chebukati, saying the chair sidelined them in the last phase of the process.

Ms Cherera said: "In the absence of a credible and verifiable explanation, we concluded that the process that went into the generation of Form 34C which Mr Chebukati used to declare results of the presidential election was opaque and incapable of earning our ownership and confidence."

The Maina Kiai case of 2017, one of the most quoted cases in recent days, is expected to be cited following the guidelines set by the Court of Appeal over tallying and declaration of presidential election results.

In the judgement delivered by a five-judge bench comprising Justices William Ouko, Asike Makhandia, Patrick Kiage, Kathurima M'Inoti and Agnes Murgor, maintained that the Chairman could not alter any results as he did not have the powers to do so.

"To suggest that there is some law that empowers the chairperson of the IEBC, as an individual to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power. Such a suggestion would introduce opaqueness and arbitrariness to the electoral process," read the ruling.

In 2017, the Maina Kiai case was also used in the Supreme Court judgement in overturning the declaration by Chebukati of presidential election win by Uhuru Kenyatta.
It was also determined that the results from the polling stations are final and can only be altered by the Supreme Court, not even the IEBC chairperson.

"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," read the judgement.

The judgement added: "IEBC and the chairperson cannot correct errors identified in Forms 34B or amend Forms 34B where the same differ with the results contained in the relevant Forms 34A."

Another bone of contention expected before the judges is whether Chebukati erred in declaring the presidential, while results from some constituencies had not been announced publicly. It also certain that Azimio coalition will question the difference in the number of votes in the presidential election and other elective positions.

The writer is ODM Executive Director