Nipate
Forum => Kenya Discussion => Topic started by: Omollo on May 21, 2017, 02:00:29 PM
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I found this at http://www.Kenya-today.com
HIGH COURT RULING on presidential VOTE TALLYING that Shocked STATEHOUSE, Forcing IEBC to Appeal
MAY 19, 2017 13 COMMENTS
The Independent Electoral and Boundaries Commission (IEBC) has appealed a critical judgement whose net impact was to do away the the creation of a national tallying centre which has in the past been abused by incumbent regimes to rig the presidential vote.
Petition No. 207 of 2016 is a case filed by Maina Kiai, Khelef Khalifa and Tirop Kitur seeking to compel the IEBC to do away with the ‘national tallying centre’ and instead, as provided for in law, have the results announced by Constituency Returning Officers as the final results.
In the past, and against the law, IEBC regulations made the IEBC Chairman the sole Returning Officer of the Presidential Results. The results Constituency Returning Officers announced were termed as ‘provisional’.
Because the IEBC Chairman sits in Nairobi waiting for results from all over the country, the window provided an avenue for tampering with the results so much so that by the time the IEBC Chairman received them, figures had been altered by collusion between state agencies and rogue returning officers, many who “disappeared” thereafter only to reappear months later.
Maina, Khalifa and Tirop therefore demanded, critically, the following declarations from the High Court.
iii. A declaration that respective constituency returning officers are the persons responsible for the conduct and announcement of constituency presidential elections results;
iv. A declaration that constituency presidential elections as declared by the respective constituency returning officers are final results for the purposes of that election;
v. A declaration that constituency returning officers possess a fundamental and an inalienable mandate to declare the final results for a presidential election at constituency level and that such declaration is final and not subject to alteration, confirmation or adulteration by any person or authority, other than an election court, pursuant to Articles 86 and 138(2) of the Constitution of Kenya.
This public narrative on this case makes it appear like it was filed by the political opposition while it was not. In fact, the political opposition was not even part of the proceedings before the high court.
The three petitioners argued that section 39(2) and (3) of the Elections Act and regulations 83(2), 84(1) and 87(2)(c) of the Elections (General) Regulations 2012 made under the Elections Act are contrary to Articles 86(b) and (c) and 138(2) of the Constitution in so far as, and to the extent that, they provide that the declaration of results of the presidential election by the returning officer at the constituency level are provisional and subject to confirmation by the 1st respondent (IEBC Chairman) after a tally of all the votes cast in the election. In the affidavit sworn by the 1st petitioner (Maina Kiai) in support of the petition he stated that the 1st respondent, in following the impugned section and regulations, has in previous presidential elections treated the results announced and declared at the constituency level by the respective returning officers in fulfillment of Articles 86 and 138(2) to be provisional subject to confirmation by some of its Commissioners and staff at the national tallying centre in Nairobi.
The act of confirming and varying the constituency results by the 1st respondent (IEBC Chairman), the petitioners stated, was not only contrary to Articles 86 and 138(2) but also undermined the tenets of a fair election. This is because, under Articles 86 and 138(2) the declaration by the constituency returning officer is final for that election in the constituency. Any impression, therefore, that such results are provisional undermines the authority given to the constituency returning officers and exposes the presidential electoral system to abuse, and makes it prone to electoral malpractice by the 1st respondent (IEBC Chairman) and its officers.
In response, the IEBC claimed that the High Court had no jurisdiction to hear and determine the matter raised, and that the issues raised were akin to re-opening Raila Odinga 2013 case. Finally, IEBC insisted that the Commission had the power to alter, vary or correct results so received, which it termed ‘provisional’, before announcing and declaring the winner.
This last observation made the judges pose the all important question:”… how can the election results which have been tallied, verified and declared to be final under regulation 83(3) be said to be provisional, temporary or conditional under regulation 87(2)(c)? Why, and for what reason, would a returning officer be transmitting “provisional” results to the Commission when he has already declared the winner and issued a certificate?”
In the end, the judges made the following declarations:
a) It is declared that to the extent that section 39(2) and (3) of the Elections Act provides that the presidential election results declared by the constituency returning officer are provisional is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
b) It is declared that to the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officer are provisional is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
c) It is declared that to the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officers are subject to confirmation by the Commission is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
d) It is declared that the presidential election results declared by the constituency returning officer are final in respect of the constituency, and can only be questioned by the election court; and
e) It is declared that to the extent that the 1st respondent interprets section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) to mean that it can confirm, alter, vary and/or verify the presidential election results declared by the constituency returning officer in the particular constituency is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void.
IEBC has appealed this judgement to the Court of Appeal.
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It seems fairly straightforward. It's not clear to me why someone in Nairobi would purport to be in a better position to validate results than the folks doing the actual counting. In any case, it seems to be a sound legal ruling.
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So after the returning officer has announced the final results; Nairobi only job would be to collect the verified results and tally up.
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So after the returning officer has announced the final results; Nairobi only job would be to collect the verified results and tally up.
That is what the law said before and the High Court simply restated it to stop the games Isaac Hassan started. Do you have a problem with that?
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Exactly. In the US they do not even have anybody at the national level charged with the silly ceremonial duty to declare a winner. People can just sit in front of TV or Radio and hear/see the math as each state reports its result and the votes are added-openly. At a certain point a winner is projected then ultimately declared by everyone and the loser makes a concession speech-Mambo Kwisha. If there is a dispute of a particular State result then that is where you focus.
So after the returning officer has announced the final results; Nairobi only job would be to collect the verified results and tally up.
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Exactly. In the US they do not even have anybody at the national level charged with the silly ceremonial duty to declare a winner. People can just sit in front of TV or Radio and hear/see the math as each state reports its result and the votes are added-openly. At a certain point a winner is projected then ultimately declared by everyone and the loser makes a concession speech-Mambo Kwisha. If there is a dispute of a particular State result then that is where you focus.
So after the returning officer has announced the final results; Nairobi only job would be to collect the verified results and tally up.
There is just this obsession with the idea that if you oversee something, you should be able to alter stuff. Even stuff you are least equipped to manipulate. I can't see any innocent reason why they would want to be able to change results that have already been certified elsewhere by people who know better. If things are flawed at that level, that is the stuff that petitions in court can resolve.
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The court is the only institution which has the power to change the constituency level results after evaluating the testimonial and documentary evidence presented in an open court clearly establishing that the original numbers announced were not correct. I cannot imagine what the IEBC mullahs would base their decision to change the constituency results on. We can not allow the tortured manipulation of Numbers that Hassan engaged in 2013 to make sure Ourutu crossed the 50% line.
Exactly. In the US they do not even have anybody at the national level charged with the silly ceremonial duty to declare a winner. People can just sit in front of TV or Radio and hear/see the math as each state reports its result and the votes are added-openly. At a certain point a winner is projected then ultimately declared by everyone and the loser makes a concession speech-Mambo Kwisha. If there is a dispute of a particular State result then that is where you focus.
So after the returning officer has announced the final results; Nairobi only job would be to collect the verified results and tally up.
There is just this obsession with the idea that if you oversee something, you should be able to alter stuff. Even stuff you are least equipped to manipulate. I can't see any innocent reason why they would want to be able to change results that have already been certified elsewhere by people who know better. If things are flawed at that level, that is the stuff that petitions in court can resolve.
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I have no problem with either - it just shift the burden from 7 well vetted commissioners - to 290 returning officers whom the same IEBC will hire in opaque process.
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Pundit. The difference is HUGE. The 290 returning officers will NOW be responsible and answerable to their numbers and cannot transmit to Bomas and disappear. All parties have to sign off and the numbers are released to the public the same time they are transmitted to Bomas. Also, the 290 returning officer and the signatories will have personal knowledge of the results and can therefore be called upon to testify in court subject to cross-examination if there is a dispute. The constituency numbers must be transmitted to Bomas and to the public simultaneously so that we can cross-check them. If Bomas believe that the numbers submitted to them from a particular constituency are somehow erroneous and would like to change them, they have to explain it clearly to the public and allow for the party that is adversely affected the opportunity to challenge the change in court. Transparency maybe cumbersome and inconvenient but it is cheaper than hiding things and causing chaos. Actually this is the best way to avoid post election violence because the aggrieved party will also have to convince the public and the international community on exactly how they believe they were robbed. IF the Mutunga court consider all the evidence presented before them by CORD in 2013, the country would be much better-off today than the cowardice they displayed by using technicalities to decide a serious case like the one before them. Supreme courts are called Supreme courts for a reason. Supreme courts do not use technicalities to dismiss cases of great public interest.
I have no problem with either - it just shift the burden from 7 well vetted commissioners - to 290 returning officers whom the same IEBC will hire in opaque process.
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Pundit. The difference is HUGE. The 290 returning officers will NOW be responsible and answerable to their numbers and cannot transmit to Bomas and disappear. All parties have to sign off and the numbers are released to the public the same time they are transmitted to Bomas. Also, the 290 returning officer and the signatories will have personal knowledge of the results and can therefore be called upon to testify in court subject to cross-examination if there is a dispute. The constituency numbers must be transmitted to Bomas and to the public simultaneously so that we can cross-check them. If Bomas believe that the numbers submitted to them from a particular constituency are somehow erroneous and would like to change them, they have to explain it clearly to the public and allow for the party that is adversely affected the opportunity to challenge the change in court. Transparency maybe cumbersome and inconvenient but it is cheaper than hiding things and causing chaos. Actually this is the best way to avoid post election violence because the aggrieved party will also have to convince the public and the international community on exactly how they believe they were robbed. IF the Mutunga court consider all the evidence presented before them by CORD in 2013, the country would be much better-off today than the cowardice they displayed by using technicalities to decide a serious case like the one before them. Supreme courts are called Supreme courts for a reason. Supreme courts do not use technicalities to dismiss cases of great public interest.
I have no problem with either - it just shift the burden from 7 well vetted commissioners - to 290 returning officers whom the same IEBC will hire in opaque process.
I will also add that, while that may or may not be the purpose of this law, it also makes a centrally coordinated rigging plan that much harder to implement. You need more people to buy in.
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I am not even bothered by the fact that IEBC objected.
I am amused by the grounds for the objection. Years after the constitution removed the locus standi trickery used by Wako and Moi to frustrate citizens seeking redress in courts by allowing virtually anybody to sue about anything, an advocate goes to court to say NASA cannot sue because it is not a political party and is not therefore aggrieved! One is not required to show, demonstrate or prove affliction to be heard.
Preliminary objections for the sake of it? How about using the occasion to say you are ready to proceed with the substantive issue(s) at once!
A case filed by Opposition leaders challenging deployment of electoral returning officers will proceed before High Court judge George Odunga.
This follows a verdict issued on Monday by the Justice Odunga when he dismissed an objection raised by the Independent Electoral and Boundaries Commission (IEBC).
In his verdict, Justice Odunga declined to have the case dismissed as the commission had requested saying that the National Super Alliance (Nasa) have a right by law to be heard as aggrieved parties.
And while defending Nasa as not being busy bodies by taking their protests to his court over the IEBC’s actions, the judge also pointed out that other earlier verdicts from various countries indicate that a case can be taken to a court by an aggrieved party with a genuine grievance.
“Therefore based on the authority and Constitution, Nasa, being a party who claims that is aggrieved by the decision of the IEBC clearly has a standing as per the law to agitate its rights before this court,” said Justice Odunga.
DID NOT CONSULT
Nasa had moved to court last week seeking to have the selected and deployed returning officers in the 290 constituencies as well as 47 counties meant to oversee the August 8 polls be barred from going on with the work they are supposed to undertake.
According to Nasa, the commission led by its chairman Wafula Chebukati did not consult key players before embarking in the recent selection, transfer and deployment of returning officers.
Through lawyer Willis Otieno, Nasa faulted the IEBC for making a unilateral April 27 decision on the matter.
They also claimed that the process was secretive and was driven by ulterior political considerations ‘in a manner that defeats the principles of the supreme law and the right to fair administrative action’.
Nasa wants the decision suspended pending the determination of the case on grounds that it undermines a democratic, free and fair election process.
DISMISS SUIT
However, IEBC, through its lawyer, Paul Nyamudi, had asked the judge not to have the case heard or determined on grounds that Nasa is not a political party but a coalition.
He had earlier told court that a coalition is of a lesser status than political parties hence Nasa have no right to sue on matters of interest to the public. And consequently asked the court to dismiss the suit.
But Nasa further argued that since the coalition is recognised by the Registrar of Political parties, it can still enforce rights within that outfit.
The Ethnic Rag (http://www.nation.co.ke/news/politics/Nasa-wins-first-round-against-IEBC/1064-3937164-hfjykt/)
Now compare with The Online Ethnic Crap (https://www.the-star.co.ke/news/2017/05/23/iebc-loses-first-round-to-nasa-in-case-involving-hiring-of-returning_c1565887)
The Independent Electoral and Boundaries Commission has lost the first round of the legal battle to opposition alliance NASA in a case involving the hiring of returning officers.
Giving NASA victory, High Court judge George Odunga yesterday dismissed the plea by the IEBC to have the matter knocked out on technicalities without delving into the substance of it.
The IEBC wanted the case dismissed, arguing that since NASA is a coalition and not a political party, it is not allowed to sue. NASA said the Constitution gives every person the right to institute proceedings.
And the term person includes unincorporated bodies, hence political parties.
Most importantly, the court was told previously, coalitions were permitted to institute legal proceedings and it would be an absurdity to disallow NASA now.
Odunga held that NASA has the right to sue.
NASA had sued the IEBC, accusing it of hiring returning officers without involving political parties.
The opposition believes the commission is up to no good in avoiding transparency in the exercise. In its suit, NASA had raised concerns about the manner in which the IEBC went on with the exercise of hiring returning officers both for county and constituency levels without involving political parties.
NASA holds the view that the election law allows political parties to give views on persons to be appointed as returning officers.
“The respondent [IEBC] has acted in an unconstitutional manner in that the applicant [NASA[ and its constituent political parties have not been accorded an opportunity to make representations on persons to be appointed constituency and county returning officers,” the coalition said.
According to NASA, the commission has thrown the need for transparency and accountability in election process out of the window.
“The process leading to the unlawful decision is unfair and violates the basic tenets of the rule of law as the IEBC did not adhere to the principals of good governance,” the court was told.
The coalition believes the action of the IEBC is an affront to the principles of the electoral systems and it is of utmost importance that such action is addressed immediately.
NASA wants the court to suspend the April 27 decision to hire returning officers, pending determination of the case. The case will be heard on June 14.
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That was an embarrassment. How can a whole lawyer waste the courts valuable time with such a frivolous, desperate procedural motion which clearly lacks merit. The judge must have been really pissed off. The commissioners should not have let their lawyer submit frivolous motion like that unless they were in the Moi era as Omollo correctly pointed out. IEBC is acting as if it is a partisan organization aligned with Jubilee and NASA is their common enemy. The deployment of RO's is a very weighty issue and the methodology is very important. I believe that once they have all been vetted, trained and sworn in, they should be randomly deployed through a lottery system.
I am not even bothered by the fact that IEBC objected.
I am amused by the grounds for the objection. Years after the constitution removed the locus standi trickery used by Wako and Moi to frustrate citizens seeking redress in courts by allowing virtually anybody to sue about anything, an advocate goes to court to say NASA cannot sue because it is not a political party and is not therefore aggrieved! One is not required to show, demonstrate or prove affliction to be heard.
Preliminary objections for the sake of it? How about using the occasion to say you are ready to proceed with the substantive issue(s) at once!
A case filed by Opposition leaders challenging deployment of electoral returning officers will proceed before High Court judge George Odunga.
This follows a verdict issued on Monday by the Justice Odunga when he dismissed an objection raised by the Independent Electoral and Boundaries Commission (IEBC).
In his verdict, Justice Odunga declined to have the case dismissed as the commission had requested saying that the National Super Alliance (Nasa) have a right by law to be heard as aggrieved parties.
And while defending Nasa as not being busy bodies by taking their protests to his court over the IEBC’s actions, the judge also pointed out that other earlier verdicts from various countries indicate that a case can be taken to a court by an aggrieved party with a genuine grievance.
“Therefore based on the authority and Constitution, Nasa, being a party who claims that is aggrieved by the decision of the IEBC clearly has a standing as per the law to agitate its rights before this court,” said Justice Odunga.
DID NOT CONSULT
Nasa had moved to court last week seeking to have the selected and deployed returning officers in the 290 constituencies as well as 47 counties meant to oversee the August 8 polls be barred from going on with the work they are supposed to undertake.
According to Nasa, the commission led by its chairman Wafula Chebukati did not consult key players before embarking in the recent selection, transfer and deployment of returning officers.
Through lawyer Willis Otieno, Nasa faulted the IEBC for making a unilateral April 27 decision on the matter.
They also claimed that the process was secretive and was driven by ulterior political considerations ‘in a manner that defeats the principles of the supreme law and the right to fair administrative action’.
Nasa wants the decision suspended pending the determination of the case on grounds that it undermines a democratic, free and fair election process.
DISMISS SUIT
However, IEBC, through its lawyer, Paul Nyamudi, had asked the judge not to have the case heard or determined on grounds that Nasa is not a political party but a coalition.
He had earlier told court that a coalition is of a lesser status than political parties hence Nasa have no right to sue on matters of interest to the public. And consequently asked the court to dismiss the suit.
But Nasa further argued that since the coalition is recognised by the Registrar of Political parties, it can still enforce rights within that outfit.
The Ethnic Rag (http://www.nation.co.ke/news/politics/Nasa-wins-first-round-against-IEBC/1064-3937164-hfjykt/)
Now compare with The Online Ethnic Crap (https://www.the-star.co.ke/news/2017/05/23/iebc-loses-first-round-to-nasa-in-case-involving-hiring-of-returning_c1565887)
The Independent Electoral and Boundaries Commission has lost the first round of the legal battle to opposition alliance NASA in a case involving the hiring of returning officers.
Giving NASA victory, High Court judge George Odunga yesterday dismissed the plea by the IEBC to have the matter knocked out on technicalities without delving into the substance of it.
The IEBC wanted the case dismissed, arguing that since NASA is a coalition and not a political party, it is not allowed to sue. NASA said the Constitution gives every person the right to institute proceedings.
And the term person includes unincorporated bodies, hence political parties.
Most importantly, the court was told previously, coalitions were permitted to institute legal proceedings and it would be an absurdity to disallow NASA now.
Odunga held that NASA has the right to sue.
NASA had sued the IEBC, accusing it of hiring returning officers without involving political parties.
The opposition believes the commission is up to no good in avoiding transparency in the exercise. In its suit, NASA had raised concerns about the manner in which the IEBC went on with the exercise of hiring returning officers both for county and constituency levels without involving political parties.
NASA holds the view that the election law allows political parties to give views on persons to be appointed as returning officers.
“The respondent [IEBC] has acted in an unconstitutional manner in that the applicant [NASA[ and its constituent political parties have not been accorded an opportunity to make representations on persons to be appointed constituency and county returning officers,” the coalition said.
According to NASA, the commission has thrown the need for transparency and accountability in election process out of the window.
“The process leading to the unlawful decision is unfair and violates the basic tenets of the rule of law as the IEBC did not adhere to the principals of good governance,” the court was told.
The coalition believes the action of the IEBC is an affront to the principles of the electoral systems and it is of utmost importance that such action is addressed immediately.
NASA wants the court to suspend the April 27 decision to hire returning officers, pending determination of the case. The case will be heard on June 14.
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This in my view is jumping from fire to frying pan. Now you see NASA panicking about the returning officer - and wanting them vetted. That won't be easy to do. These faceless RO if given unfettered power to declare final results can plunge the country into chaos and disappears.
Now we have to vet 290 returning officer and there is simply no time. In 2 months time they have to prepare for elections - hire presiding and clerks - hire transporters - receive materials - and conduct training. Not enough time for NASA to complete their court case against IEBC.
At end of the day it about trusting or not trusting people. We cannot trust anyone. We are better trusting technology. Let hope electronic transmission from every polling station will work this time round.
Frying pan direct to the fire. Who has the muscle - financial & coercive power - to intimidate RO to declare fake results - NSIS and Uhuru.
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Oh, come-on. Nobody is talking about extreme vetting. 290 people can be vetted very quickly-run their criminal records, finger print them, have them sign financial disclosure forms, biographic information, etc. This can all be done in a week during their orientation week at KIA where they are, trained, instructed, placed under oath and bonded. They are then randomly assigned by lottery to their place of work and responsibility. Its amazing what happens when you give people responsibility and tell them that they will be held accountable for their actions individually. You must also appeal to their sense of patriotism and fairness. Make them understand how important their jobs are not only for themselves and families but to the country. They also need to be assured that if they do the right thing, they will be protected by the law and by the government of Kenya, but if they disobey the law then they will pay heavily and dearly. This is very simple stuff that is cheaply and routinely done in most countries but the pay-off is huge.
This in my view is jumping from fire to frying pan. Now you see NASA panicking about the returning officer - and wanting them vetted. That won't be easy to do. These faceless RO if given unfettered power to declare final results can plunge the country into chaos and disappears.
Now we have to vet 290 returning officer and there is simply no time. In 2 months time they have to prepare for elections - hire presiding and clerks - hire transporters - receive materials - and conduct training. Not enough time for NASA to complete their court case against IEBC.
At end of the day it about trusting or not trusting people. We cannot trust anyone. We are better trusting technology. Let hope electronic transmission from every polling station will work this time round.
Frying pan direct to the fire. Who has the muscle - financial & coercive power - to intimidate RO to declare fake results - NSIS and Uhuru.
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The law clearly states that ROs are the final word. The IEBC cannot re-write the constitution.
Secondly, the constitution demands diversity. Appointing an all Kalenjin team to Western is NOT.
Thirdly, the law provides for participation by political parties. The IEBC cannot abscond.
It is not about being nice or meeting deadlines. It is the law. Whoever made those illegal decisions knew elections are time determined. There is enough time to review the whole RO process. A history professor told me recently that in the Moi days before the ECK, DCs were named ROs the night before elections. Sometimes the gazette notice would arrive long after the rigging elections
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The issue is before court of appeal. I think matters presidential - the returning officer is clearly chebukati - he is the one to tally up the results and announce the winner. Governors & Senate the RO is the County Managers. Whether RO has the power to alter results received - either from presiding officer in the polling station or RO or County RO (for senate, governor, woman rep) or president - is big question. I don't think RO should be restricted to just announcing results - even when there are clear mistakes made by those bellow them - mathematical or otherwise. There should be a log on why the results were altered or even rejected- say you noticed a mathematical error or cast votes are more than registered votes.
The law clearly states that ROs are the final word. The IEBC cannot re-write the constitution.
Secondly, the constitution demands diversity. Appointing an all Kalenjin team to Western is NOT.
Thirdly, the law provides for participation by political parties. The IEBC cannot abscond.
It is not about being nice or meeting deadlines. It is the law. Whoever made those illegal decisions knew elections are time determined. There is enough time to review the whole RO process. A history professor told me recently that in the Moi days before the ECK, DCs were named ROs the night before elections. Sometimes the gazette notice would arrive long after the rigging elections
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The issue is before court of appeal. I think matters presidential - the returning officer is clearly chebukati - he is the one to tally up the results and announce the winner. Governors & Senate the RO is the County Managers. Whether RO has the power to alter results received - either from presiding officer in the polling station or RO or County RO (for senate, governor, woman rep) or president - is big question. I don't think RO should be restricted to just announcing results - even when there are clear mistakes made by those bellow them - mathematical or otherwise. There should be a log on why the results were altered or even rejected- say you noticed a mathematical error or cast votes are more than registered votes.
The question is upon what basis would a person in Nairobi purport to "correct" a result from Turkana? What information would he be having that is not available to the RO.
Then there is the lamest of excuses you come up with: Mathematical Error. This time is not a "Computer Error" worth billions to fill up the campaign chest!
I tell you what? If arithmetic is a general problem among the Kikuyu and Kalenjin (who represent 90% of the election officials), why not open it for diversity so other tribes not debilitated by this most unique distemper can even out the errors if not eliminate them? Are you kidding me or what? Is that the excuse to be used this time? That a man employed ostensibly because he has a degree or two and years of experience cannot count?
Here is how it works: Arithmetic errors are detected as the results are discussed with agents and polling officers. Once they are sorted out, the RO mounts the platform and announces the final polished product. It is the result of the wishes of the specific constituency to be transmitted to Nairobi to Chebukati.
Like the Constituency RO, who collected results from polling stations, his is to collect and tally constituency results. If there are arithmetic errors after announcement, he cannot purport to "correct" them. That is already part of the issues to be adjudicated by the courts. By the act of appending his signature to the result, he ceases to have any more power over the result.
Chebukati cannot assume that power.
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People make errors. I don't know the process that has been used previously to correct say mathematical errors - but I would imagine - agents need to sign and logs need to be added.ROs need to verify presiding officers work - county manager need to verify RO work - and Chebukati need to verify everything. That is why they are commissioners.
upon what basis would a person in Nairobi purport to "correct" a result from Turkana? What information would he be having that is not available to the RO.
Then there is the lamest of excuses you come up with: Mathematical Error. This time is not a "Computer Error" worth billions to fill up the campaign chest!
I tell you what? If arithmetic is a general problem among the Kikuyu and Kalenjin (who represent 90% of the election officials), why not open it for diversity so other tribes not debilitated by this most unique distemper can even out the errors if not eliminate them? Are you kidding me or what? Is that the excuse to be used this time? That a man employed ostensibly because he has a degree or two and years of experience cannot count?
Here is how it works: Arithmetic errors are detected as the results are discussed with agents and polling officers. Once they are sorted out, the RO mounts the platform and announces the final polished product. It is the result of the wishes of the specific constituency to be transmitted to Nairobi to Chebukati.
Like the Constituency RO, who collected results from polling stations, his is to collect and tally constituency results. If there are arithmetic errors after announcement, he cannot purport to "correct" them. That is already part of the issues to be adjudicated by the courts. By the act of appending his signature to the result, he ceases to have any more power over the result.
Chebukati cannot assume that power.
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He can supervise and do al that as long as he accepts that the result issued by the RO is NOT provisional, cannot be altered except by a court of law and that his is count (tally) and the figure he comes up with be the reflection of the results as released by ROs all over the country.
To eliminate errors especially of the mathematical type, let him hire only those who can count. What we cannot accept is for Chebukati to sit at Bomas and purport to "confirm", verify and authenticate results.
This is no different from what happens in the US where state officials conduct the elections and release the results. It is the TV networks that call the winner. If not he would have to wait several hours (which he does) to get the official result. It is never different from the one collected by networks from every state by the networks
People make errors. I don't know the process that has been used previously to correct say mathematical errors - but I would imagine - agents need to sign and logs need to be added.ROs need to verify presiding officers work - county manager need to verify RO work - and Chebukati need to verify everything. That is why they are commissioners.
upon what basis would a person in Nairobi purport to "correct" a result from Turkana? What information would he be having that is not available to the RO.
Then there is the lamest of excuses you come up with: Mathematical Error. This time is not a "Computer Error" worth billions to fill up the campaign chest!
I tell you what? If arithmetic is a general problem among the Kikuyu and Kalenjin (who represent 90% of the election officials), why not open it for diversity so other tribes not debilitated by this most unique distemper can even out the errors if not eliminate them? Are you kidding me or what? Is that the excuse to be used this time? That a man employed ostensibly because he has a degree or two and years of experience cannot count?
Here is how it works: Arithmetic errors are detected as the results are discussed with agents and polling officers. Once they are sorted out, the RO mounts the platform and announces the final polished product. It is the result of the wishes of the specific constituency to be transmitted to Nairobi to Chebukati.
Like the Constituency RO, who collected results from polling stations, his is to collect and tally constituency results. If there are arithmetic errors after announcement, he cannot purport to "correct" them. That is already part of the issues to be adjudicated by the courts. By the act of appending his signature to the result, he ceases to have any more power over the result.
Chebukati cannot assume that power.
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What if rogue or under-duress ROs bring in really manipulated results - do you want chebukaiti to just release them like a conveyor belt and tell those aggrieved to rush to court. I don't thinks so. What we need is transparency. There are agents everywhere. Whatever change is made - they need to be signed off.
At some point we will have to trust those hired to oversee election - from clerks to chebukati - there is really no other way around this.
He can supervise and do al that as long as he accepts that the result issued by the RO is NOT provisional, cannot be altered except by a court of law and that his is count (tally) and the figure he comes up with be the reflection of the results as released by ROs all over the country.
To eliminate errors especially of the mathematical type, let him hire only those who can count. What we cannot accept is for Chebukati to sit at Bomas and purport to "confirm", verify and authenticate results.
This is no different from what happens in the US where state officials conduct the elections and release the results. It is the TV networks that call the winner. If not he would have to wait several hours (which he does) to get the official result. It is never different from the one collected by networks from every state by the networks
People make errors. I don't know the process that has been used previously to correct say mathematical errors - but I would imagine - agents need to sign and logs need to be added.ROs need to verify presiding officers work - county manager need to verify RO work - and Chebukati need to verify everything. That is why they are commissioners.
upon what basis would a person in Nairobi purport to "correct" a result from Turkana? What information would he be having that is not available to the RO.
Then there is the lamest of excuses you come up with: Mathematical Error. This time is not a "Computer Error" worth billions to fill up the campaign chest!
I tell you what? If arithmetic is a general problem among the Kikuyu and Kalenjin (who represent 90% of the election officials), why not open it for diversity so other tribes not debilitated by this most unique distemper can even out the errors if not eliminate them? Are you kidding me or what? Is that the excuse to be used this time? That a man employed ostensibly because he has a degree or two and years of experience cannot count?
Here is how it works: Arithmetic errors are detected as the results are discussed with agents and polling officers. Once they are sorted out, the RO mounts the platform and announces the final polished product. It is the result of the wishes of the specific constituency to be transmitted to Nairobi to Chebukati.
Like the Constituency RO, who collected results from polling stations, his is to collect and tally constituency results. If there are arithmetic errors after announcement, he cannot purport to "correct" them. That is already part of the issues to be adjudicated by the courts. By the act of appending his signature to the result, he ceases to have any more power over the result.
Chebukati cannot assume that power.
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The issue is before court of appeal. I think matters presidential - the returning officer is clearly chebukati - he is the one to tally up the results and announce the winner. Governors & Senate the RO is the County Managers. Whether RO has the power to alter results received - either from presiding officer in the polling station or RO or County RO (for senate, governor, woman rep) or president - is big question. I don't think RO should be restricted to just announcing results - even when there are clear mistakes made by those bellow them - mathematical or otherwise. There should be a log on why the results were altered or even rejected- say you noticed a mathematical error or cast votes are more than registered votes.
The law clearly states that ROs are the final word. The IEBC cannot re-write the constitution.
Secondly, the constitution demands diversity. Appointing an all Kalenjin team to Western is NOT.
Thirdly, the law provides for participation by political parties. The IEBC cannot abscond.
It is not about being nice or meeting deadlines. It is the law. Whoever made those illegal decisions knew elections are time determined. There is enough time to review the whole RO process. A history professor told me recently that in the Moi days before the ECK, DCs were named ROs the night before elections. Sometimes the gazette notice would arrive long after the rigging elections
He is the returning officer for Presidential elections. But that is not the same as having powers to alter certified results from polling stations without the sign off of all interested parties. His job is officially announcing the results. The results he announces should not be a secret known only to him until announcement. They should already be in the public domain. That is transparency. Now that I think about it, this function, the announcement, his entire job actually, it shouldn't even be necessary.
If a polling station or constituency with party agents does not correctly tally the results, and there are enough of them to alter the outcome, that is the stuff for courts to decide.
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He still need to verify - make sure the results meet all the criterias - maths add up - not more than 100% registered votes - was signed by party agents - if not - the RO in the waiting room and agents are told to fix them before chebukaiti announce - otherwise there is no way he can announced flawed results. I don't think his job is just to be conveyor belt of any results.
He is the returning officer for Presidential elections. But that is not the same as having powers to alter certified results from polling stations without the sign off of all interested parties. His job is officially announcing the results. The results he announces should not be a secret known only to him until announcement. They should already be in the public domain. That is transparency. Now that I think about it, this function, the announcement, his entire job actually, it shouldn't even be necessary.
If a polling station or constituency with party agents does not correctly tally the results, and there are enough of them to alter the outcome, that is the stuff for courts to decide.
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He still need to verify - make sure the results meet all the criterias - maths add up - not more than 100% registered votes - was signed by party agents - if not - the RO in the waiting room and agents are told to fix them before chebukaiti announce - otherwise there is no way he can announced flawed results. I don't think his job is just to be conveyor belt of any results.
He is the returning officer for Presidential elections. But that is not the same as having powers to alter certified results from polling stations without the sign off of all interested parties. His job is officially announcing the results. The results he announces should not be a secret known only to him until announcement. They should already be in the public domain. That is transparency. Now that I think about it, this function, the announcement, his entire job actually, it shouldn't even be necessary.
If a polling station or constituency with party agents does not correctly tally the results, and there are enough of them to alter the outcome, that is the stuff for courts to decide.
He is not a conveyor belt. Which is why I think his job ought to be redundant. All that math can be done at the lower levels. If it doesn't add up, it can become part of a petition.
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He still need to verify - make sure the results meet all the criterias - maths add up - not more than 100% registered votes - was signed by party agents - if not - the RO in the waiting room and agents are told to fix them before chebukaiti announce - otherwise there is no way he can announced flawed results. I don't think his job is just to be conveyor belt of any results.
It shouldn't have to be a matter of what one thinks. By way of helping towards a more objective discussion, may I suggest that you:
(1) State exactly what he "needs" to verify, the legal basis for all of it, and why (legally) he should be the one to do the verification.
(2) State exactly what these criteria are, where they are stated in law, and the legal basis on which he is to verify that they have been met.
Simply making up stuff doesn't really help, even if, on the face of it, it seems reasonable: a quick consideration of the essence of the made-up stuff will quickly reveal underlying problems elsewhere. For example, he is supposedly to reject "> 100% of registered voters doing ...". On that basis---i.e., "too many supposedly showed up"---presumably exactly 99% or 100% would be just fine. Really?
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Here is chebukati saying they must verify the results
http://www.capitalfm.co.ke/news/2017/05/iebc-tells-court-it-must-verify-constituency-presidential-results/
Chebukati is the presidential returning officer - and like const returning officer verify whatever he receives from each presiding officer - Chebukati need to also make sure the results tick all the boxes.
Typical this would include Chebukati receiving all the results from every polling station - making sure they are duly signed - summing them up again - and where there is a problem - then rejecting some of them.
Allow RO to make final declaration will lead to lot more chaos.
He still need to verify - make sure the results meet all the criterias - maths add up - not more than 100% registered votes - was signed by party agents - if not - the RO in the waiting room and agents are told to fix them before chebukaiti announce - otherwise there is no way he can announced flawed results. I don't think his job is just to be conveyor belt of any results.
It shouldn't have to be a matter of what one thinks. By way of helping towards a more objective discussion, may I suggest that you:
(1) State exactly what he "needs" to verify, the legal basis for all of it, and why (legally) he should be the one to do the verification.
(2) State exactly what these criteria are, where they are stated in law, and the legal basis on which he is to verify that they have been met.
Simply making up stuff doesn't really help, even if, on the face of it, it seems reasonable: a quick consideration of the essence of the made-up stuff will quickly reveal underlying problems elsewhere. For example, he is supposedly to reject "> 100% of registered voters doing ...". On that basis---i.e., "too many supposedly showed up"---presumably exactly 99% or 100% would be just fine. Really?
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He still need to verify - make sure the results meet all the criterias - maths add up - not more than 100% registered votes - was signed by party agents - if not - the RO in the waiting room and agents are told to fix them before chebukaiti announce - otherwise there is no way he can announced flawed results. I don't think his job is just to be conveyor belt of any results.
Pundit
That (highlighted) is why people went to court. If there has been cooking (to borrow Kivuitu's words) why should Chebukati cleanse it? Assuming there are recorded 145,777 votes out of where the total registered voters are 107,000, would you like to educate me how Chebukati would "correct" the error?
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Here is chebukati saying they must verify the results
Chebukati is the presidential returning officer - and like const returning officer verify whatever he receives from each presiding officer - Chebukati need to also make sure the results tick all the boxes.
Typical this would include Chebukati receiving all the results from every polling station - making sure they are duly signed - summing them up again - and where there is a problem - then rejecting some of them.
So you keep saying. If you would care to point us to the law on which that statement is based--and how that law confers on him the powers that are being claimed on his behalf---we could have a more objective discussion.
And what exactly are those boxes? (Please point to the relevant law.)
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I believe the returning officer arrives with all polling station results(all form 36s) - not just a single form 34 - so if there is problem - then they go through each polling station and identify the ones with problems - and those can either be corrected (assuming it's a mathematical error - lots of transposition - or just clerical error)- and the party agents can sign there and then. If not - then they become disputed. The same process the RO has to go through with each presiding officer from every polling station. They cannot simply be conveyor belts.
That (highlighted) is why people went to court. If there has been cooking (to borrow Kivuitu's words) why should Chebukati cleanse it? Assuming there are recorded 145,777 votes out of where the total registered voters are 107,000, would you like to educate me how Chebukati would "correct" the error?
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Why not attempt to read election laws and constitution -and if you still got problems - I can help you.
Chebukati is the presidential returning officer - and like const returning officer verify whatever he receives from each presiding officer - Chebukati need to also make sure the results tick all the boxes.
Typical this would include Chebukati receiving all the results from every polling station - making sure they are duly signed - summing them up again - and where there is a problem - then rejecting some of them.
So you keep saying. If you would care to point us to the law on which that statement is based--and how that law confers on him the powers that are being claimed on his behalf---we could have a more objective discussion.
And what exactly are those boxes? (Please point to the relevant law.)
[/quote]
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Why not attempt to read election laws and constitution -and if you still got problems - I can help you.
I have already read them. And I have problems with your claims. So, please "help", as I might have missed something. In particular, as I have already asked, point to specific parts that support your claims. Thank you very much, ndugu; you will undoubtedly help me learn something today.
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Try a little bit harder. Chair of IEBC is the presidential Returning Officer.
I have already read them. And I have problems with your claims. So, please "help", as I might have missed something. In particular, as I have already asked, point to specific parts that support your claims. Thank you very much, ndugu; you will undoubtedly help me learn something today.
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Try a little bit harder. Chair of IEBC is the presidential Returning Officer.
I have already tried my best; and you have already told me (us) the latter. Where I need help--and you have kindly stated that "I can help you"---is with the relevant law. I'd very very grateful if you would do what you "can", as you have indeed offered to, instead of re-starting from the beginning; we won't make much progress going round in circles, especially when you have what it takes to alter the course of things. Once we all know what the relevant law is, we can proceed to more fruitful discussions. Asante sana, ndugu.
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That is exactly what Maina Kiai went to court to prevent. Where IEBC starts to create new forms and get new signatures and amend and change until they announce an imposter as the winner.
I can see why you believe you will win: You are banking on the confusion, alteration, correction and amendments by Chebukati. Now you can understand why on our part we say if that is allowed we might as well give up because the outcome would be known beforehand.
I won't belabour the point, Ill grant you time to produce some answers to Moon Ki. I am also listening.
I believe the returning officer arrives with all polling station results(all form 36s) - not just a single form 34 - so if there is problem - then they go through each polling station and identify the ones with problems - and those can either be corrected (assuming it's a mathematical error - lots of transposition - or just clerical error)- and the party agents can sign there and then. If not - then they become disputed. The same process the RO has to go through with each presiding officer from every polling station. They cannot simply be conveyor belts.
That (highlighted) is why people went to court. If there has been cooking (to borrow Kivuitu's words) why should Chebukati cleanse it? Assuming there are recorded 145,777 votes out of where the total registered voters are 107,000, would you like to educate me how Chebukati would "correct" the error?
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if still struggling read here https://www.iebc.or.ke/uploads/resources/o8K6y0Co5S.pdf
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Brief reminder:
The act of confirming and varying the constituency results by the 1st respondent (IEBC Chairman), the petitioners stated, was not only contrary to Articles 86 and 138(2) but also undermined the tenets of a fair election. This is because, under Articles 86 and 138(2) the declaration by the constituency returning officer is final for that election in the constituency. Any impression, therefore, that such results are provisional undermines the authority given to the constituency returning officers and exposes the presidential electoral system to abuse, and makes it prone to electoral malpractice by the 1st respondent (IEBC Chairman) and its officers.
In response, the IEBC claimed that the High Court had no jurisdiction to hear and determine the matter raised, and that the issues raised were akin to re-opening Raila Odinga 2013 case. Finally, IEBC insisted that the Commission had the power to alter, vary or correct results so received, which it termed ‘provisional’, before announcing and declaring the winner.
This last observation made the judges pose the all important question:”… how can the election results which have been tallied, verified and declared to be final under regulation 83(3) be said to be provisional, temporary or conditional under regulation 87(2)(c)? Why, and for what reason, would a returning officer be transmitting “provisional” results to the Commission when he has already declared the winner and issued a certificate?”
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The law [which high court declared part of it null and void] provided for verification. where there were problems - then RO - is allowed to disregard those polling station figures that have serious issues. The idea that Chebukati as presidential RO is just made to announce the results without verifying and disputing some of them doesn't sound practical or logical. Any alteration made can be disputed in court. But no way you can ask Chebukati to announce that Uhuru got 60,000 votes from Konoin when registered votes are 55,000.
That is exactly what Maina Kiai went to court to prevent. Where IEBC starts to create new forms and get new signatures and amend and change until they announce an imposter as the winner.
I can see why you believe you will win: You are banking on the confusion, alteration, correction and amendments by Chebukati. Now you can understand why on our part we say if that is allowed we might as well give up because the outcome would be known beforehand.
I won't belabour the point, Ill grant you time to produce some answers to Moon Ki. I am also listening.
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For MP & MCA - the const Returning Officer is final. For govenor, senator and women rep - the County RO is final. For presidential - the Chair of IEBC as the RO is final. Each of them need to get result from guys below them, verify, ran sanity checks, dispute or disregard some - and finally announce the winner.This they ought to do is presence of party and candidate agency - and ought to be documented - and those can become part of petition to court.
Brief reminder:
The act of confirming and varying the constituency results by the 1st respondent (IEBC Chairman), the petitioners stated, was not only contrary to Articles 86 and 138(2) but also undermined the tenets of a fair election. This is because, under Articles 86 and 138(2) the declaration by the constituency returning officer is final for that election in the constituency. Any impression, therefore, that such results are provisional undermines the authority given to the constituency returning officers and exposes the presidential electoral system to abuse, and makes it prone to electoral malpractice by the 1st respondent (IEBC Chairman) and its officers.
In response, the IEBC claimed that the High Court had no jurisdiction to hear and determine the matter raised, and that the issues raised were akin to re-opening Raila Odinga 2013 case. Finally, IEBC insisted that the Commission had the power to alter, vary or correct results so received, which it termed ‘provisional’, before announcing and declaring the winner.
This last observation made the judges pose the all important question:”… how can the election results which have been tallied, verified and declared to be final under regulation 83(3) be said to be provisional, temporary or conditional under regulation 87(2)(c)? Why, and for what reason, would a returning officer be transmitting “provisional” results to the Commission when he has already declared the winner and issued a certificate?”
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if still struggling read here https://www.iebc.or.ke/uploads/resources/o8K6y0Co5S.pdf
I have always believed in the hierarchy of laws:
1.the constitution;
2. Laws
3. Regulations
I have yet to come to any jurisdiction that places regulations above laws or laws above the constitution! I think the constitution of Kenya warns laws and regulations to stay out of it way because in case of a traffic jam, it will bulldoze the rest out of the way.
Pundit, what you have posted are regulations.
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The dispute is here ..at National Tallying Center.
(3) Upon receipt of Form 34A from the
constituency returning officers under sub regulation
(1), the Chairperson of the Commission shall—
(a) verify the results against Forms 34A and
34B received from the constituency
returning officer at the national tallying
centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the
presidential candidates for each County;
(d) sign and date the forms and make
available a copy to any candidate or the
national chief agent present;
(e) publicly declare the results of the election
of the president in accordance with
Articles 138(4) and 138(10) of the
Constitution;
(f) issue a certificate to the person elected
president in Form 34D set out in the
Schedule; and
(g) deliver a written notification of the results
to the Chief Justice and the incumbent
President within seven days of the
declaration;
Provided that the Chairperson of the
Commission may declare a candidate elected as the
President before all the Constituencies have delivered
their results if in the opinion of the Commission the
results that have not been received will not make a
difference with regards to the winner on the basis of
Article 138(4)(a) and (b) of the Constitution; and
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IEBC are in charge of elections including those Returning Officer who you have so much faith in. They should be allowed to ran the elections. The constitution and Laws allows IEBC to come up with regulation of conducting election.
You either have faith in Chebukati & team - or you don't.
You should because you just forced the previous team out.
I have always believed in the hierarchy of laws:
1.the constitution;
2. Laws
3. Regulations
I have yet to come to any jurisdiction that places regulations above laws or laws above the constitution! I think the constitution of Kenya warns laws and regulations to stay out of it way because in case of a traffic jam, it will bulldoze the rest out of the way.
Pundit, what you have posted are regulations.
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Presidential results are certified and issued to the agent (representing the candidate).
You will have a very hard time re-creating the Rigging Centre at Bomas
(http://omollosview.com/wp-content/uploads/2017/05/Katiba_RO1.jpg)
For MP & MCA - the const Returning Officer is final. For govenor, senator and women rep - the County RO is final. For presidential - the Chair of IEBC as the RO is final. Each of them need to get result from guys below them, verify, ran sanity checks, dispute or disregard some - and finally announce the winner.This they ought to do is presence of party and candidate agency - and ought to be documented - and those can become part of petition to court.
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The Returning Officer at Bomas will have to openly and accurately collate results from all polling stations and promptly announce the results.
Unless you're saying we don't need a presidential returning officer?
Presidential results are certified and issued to the agent (representing the candidate).
You will have a very hard time re-creating the Rigging Centre at Bomas
(http://omollosview.com/wp-content/uploads/2017/05/Katiba_RO1.jpg)
For MP & MCA - the const Returning Officer is final. For govenor, senator and women rep - the County RO is final. For presidential - the Chair of IEBC as the RO is final. Each of them need to get result from guys below them, verify, ran sanity checks, dispute or disregard some - and finally announce the winner.This they ought to do is presence of party and candidate agency - and ought to be documented - and those can become part of petition to court.
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The same constitution Chapter 86-
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer;
We are asking that they run a credible election in accordance with the law not some rules that create massive avenues for rigging results. The constitution does not give the IEBC the power to contradict its express provisions nor transgress against the intentions of the same.
IEBC are in charge of elections including those Returning Officer who you have so much faith in. They should be allowed to ran the elections. The constitution and Laws allows IEBC to come up with regulation of conducting election.
You either have faith in Chebukati & team - or you don't.
You should because you just forced the previous team out.
I have always believed in the hierarchy of laws:
1.the constitution;
2. Laws
3. Regulations
I have yet to come to any jurisdiction that places regulations above laws or laws above the constitution! I think the constitution of Kenya warns laws and regulations to stay out of it way because in case of a traffic jam, it will bulldoze the rest out of the way.
Pundit, what you have posted are regulations.
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When you start writing your own constitution in which include Bomas, I quit. Like I told you, this time ni nyinyi mtasema you've been robbed. Everything you depended on in 2013 is either gone or on thin ice about to sink.
The Returning Officer at Bomas will have to openly and accurately collate results from all polling stations and promptly announce the results.
Unless you're saying we don't need a presidential returning officer?
Presidential results are certified and issued to the agent (representing the candidate).
You will have a very hard time re-creating the Rigging Centre at Bomas
For MP & MCA - the const Returning Officer is final. For govenor, senator and women rep - the County RO is final. For presidential - the Chair of IEBC as the RO is final. Each of them need to get result from guys below them, verify, ran sanity checks, dispute or disregard some - and finally announce the winner.This they ought to do is presence of party and candidate agency - and ought to be documented - and those can become part of petition to court.
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Don't see any problem - except when final results announced in polling station xyz exceed say registered voters or those who turned up to voter - then IEBC has to step in and disregard those results.
The same constitution Chapter 86- (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer;
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Don't see how this winning strategy - unless you just want chaos to reign. If Uhuru want to steal - he will easily buy or intimidate 290 returning officer to announce flawed final results - but that will plunge the country into chaos - something Raila without any winning strategy is keen on. Already NASA is on court challenging the appointment of ROs - claiming IEBC despite being independent need to involve them in selecting ROS :). They are realizing too late in the game that final RO results - mean they've to be so sure of 290 ROs - which is no easy fete. At least you can focus on Chebukati & team 24-7 - but how are you going to stop 290 ROs from announcing flawed final results?
I haven't seen Jubilee rush to court. It just IEBC versus NASA. Jubilee are waiting for IEBC to conduct election and they will win by bigger margin.
I personally just care for what is good for kenya. What do we do when we get flawed results - say exceeding registered votes? Do we say they are final and just announce them? Or do we reject them. That is more important issue.
When you start writing your own constitution in which include Bomas, I quit. Like I told you, this time ni nyinyi mtasema you've been robbed. Everything you depended on in 2013 is either gone or on thin ice about to sink.
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if still struggling read here https://www.iebc.or.ke/uploads/resources/o8K6y0Co5S.pdf
That's a start, thank you. Now, here is what you wrote:
Chebukati is the presidential returning officer.
Which part of that document supports that claim? From what I gather, the term "returning officer" is explicitly defined in the law, as are the associated tasks and powers, and the definition and other text suggest that no member of the IEBC can function as a "returning officer" of any sort. (I could be wrong, although I went through the relevant documents and took a look at all they had to say about "returning officers".)
You also write that:
For MP & MCA - the const Returning Officer is final. For govenor, senator and women rep - the County RO is final. For presidential - the Chair of IEBC as the RO is final.
Which part of the law supports that claim? As far as I can see, there is no such distinction. In fact, a quick look shows the constituency returning officer has an equal role for all positions--MCA, MP, Presidential.
And page 14 seems quite clear on Chebukati's role:
(3) Upon receipt of Form 34A from the constituency returning officers under sub regulation (1), the Chairperson of the Commission shall—
(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying
centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the presidential candidates for each County;
(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;
(e) publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the
Constitution;
(f) issue a certificate to the person elected president in Form 34D set out in the
Schedule; and
(g) deliver a written notification of the results to the Chief Justice and the incumbent President within seven days of the
declaration;
I see no problem with any of that.
Basically, he is to---
(i) check that the numbers he has been given match those on the forms signed by the constituency returning officers;
(ii) do the sums on the sgned-for numbers;
(iii) sign some form;
(iv) announce the results.
That's it.
All that seems to be far less that the powers you have been claiming on his behalf; and it could, as Terminator suggests, all be done by machine. In particular, I don't see the basis on which he would be able to change anything from the constituency level or where he has room to argue with the numbers signed for at the constituency level. So, as in most places, people ought to be able to "call" the results simply by looking numbers declared at the lower level, and unless Chebukati has some magical calculator that would yield different sums, he has no more say over "presidential" numbers than he has over "lower level" numbers ... basic checks and signatures.
What have I missed or not understood?
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Here we go with hair splitting.The Const Ro, the county Ro, and Chebukati as Ro of presidential do the same job. They receive results, verify, add them up again and finally issue the winner with certificate.
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Here we go with hair splitting.The Const Ro, the county Ro, and Chebukati as Ro of presidential do the same job. They receive results, verify, add them up again and finally issue the winner with certificate.
There you go with the "hair-splitting" claim. This might come as a surprise to you, but the law really matters in such cases; that is actually what this thread is about! (Read the title and opening "post".) Also, the manamba view of the "same job" is both unhelpful and inaccurate. (Read the relevant documents.)
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That is some leap. The law is now before the court of appeal. I think all ROs (be it const, county or presidential) should be allowed to verify the results; not just act as conveyor belt; that will stop rogue POs or ROs from messing up elections knowing they are final. Any alteration or rejection made at any level should be documented and should be done in full presence of all agents & observers.Anything else is inviting chaos...which NASA are angling for.
If RO turn up at KICC or Bomas with flawed results. Chebukati should say No. If there are simple corrections needed - say the made mathematical error or transposed some figures - then agents & RO can clean that up.
There you go with the "hair-splitting" claim. This might come as a surprise to you, but the law really matters in such cases; that is actually what this thread is about! (Read the title and opening "post".) Also, the manamba view of the "same job" is both unhelpful and inaccurate. (Read the relevant documents.)
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Kibe nails it here. Const RO does not conduct presidential election. It chebukati the chair of IEBC who conduct presidential elections.
https://www.standardmedia.co.ke/article/2001236476/why-high-court-got-it-wrong-on-presidential-tallying-case
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.
Read more at: https://www.standardmedia.co.ke/article/2001236476/why-high-court-got-it-wrong-on-presidential-tallying-case
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That is some leap. The law is now before the court of appeal. I think all ROs (be it const, county or presidential) should be allowed to verify the results; not just act as conveyor belt; that will stop rogue POs or ROs from messing up elections knowing they are final. Any alteration or rejection made at any level should be documented and should be done in full presence of all agents & observers.Anything else is inviting chaos...which NASA are angling for.
I have already tried to point this out: it has very little to do with what you think; the law is what matters, and that is so regardless of what appeal is where. (Appeals and so on are about the interpretation of the law, and, like all matters before any court, they start on the presumption that the law matters!)
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I think you're an irritant.
I have already tried to point this out: it has very little to do with what you think; the law is what matters, and that is so regardless of what appeal is where. (Appeals and so on are about the interpretation of the law, and, like all matters before any court, they start on the presumption that the law matters!)
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Kibe nails it here. Const RO does not conduct presidential election. It chebukati the chair of IEBC who conduct presidential elections.
Here is what the Elections Act says:
38. Holding of elections
After a notice of an election has been published in the Gazette under section 14, 16, 17 and 19, every returning officer shall proceed to hold the election according to the terms of the notice and in accordance with the regulations relating to elections.
Section 14: presidential elections
Section 16: MP elections
Section 17: Governor elections
Section 19: MCA elections
All four levels. This idea of one person doing "these other" levels and another person doing that "most-important" presidential level simply has no support in the law.
And Sections 14-19 are quite clear on the role of the IEBC: it will publish in the Gazette a notice that elections are to be held and, within 21 days of that notice, inform the returning officers, who will then conduct whatever elections are to be held.
(As I have already noted, it is not possible to interpret "returning officer" in a manner that includes any member of the IEBC.)
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Don't see any problem - except when final results announced in polling station xyz exceed say registered voters or those who turned up to voter - then IEBC has to step in and disregard those results.
The same constitution Chapter 86- (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer;
You just have to have faith that this will not be a problem. If it is, that is what the courts are there for. The current arrangement has not prevented shady-looking results from going through anyhow.
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Kibe nails it here. Const RO does not conduct presidential election. It chebukati the chair of IEBC who conduct presidential elections.
Here is what the Elections Act says:
38. Holding of elections
After a notice of an election has been published in the Gazette under section 14, 16, 17 and 19, every returning officer shall proceed to hold the election according to the terms of the notice and in accordance with the regulations relating to elections.
Section 14: presidential elections
Section 16: MP elections
Section 17: Governor elections
Section 19: MCA elections
All four levels. This idea of one person doing "these other" levels and another person doing that "most-important" presidential level simply has no support in the law.
And Sections 14-19 are quite clear on the role of the IEBC: it will publish in the Gazette a notice that elections are to be held and, within 21 days of that notice, inform the returning officers, who will then conduct whatever elections are to be held.
(As I have already noted, it is not possible to interpret "returning officer" in a manner that includes any member of the IEBC.)
It appears Chebukati has no permission to change numbers or do some rocket science arithmetic that ROs and political party agents may have missed. In the citations you made, I haven't seen anything that allows him to fix the math or that sort of thing. It looks like those activities end with ROs.
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I think you're an irritant.
That's not very nice. Here's a book for you: https://www.amazon.com/How-Win-Friends-Influence-People/dp/0671027034/ref=sr_1_1?ie=UTF8&qid=1495655065&sr=8-1&keywords=how+to+win+friends+and+influence
$0.73 on Kindle, $2.84 for used paperback.
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It appears Chebukati has no permission to change numbers or do some rocket science arithmetic that ROs and political party agents may have missed. In the citations you made, I haven't seen anything that allows him to fix the math or that sort of thing. It looks like those activities end with ROs.
As far as I can tell, he does not, and, perhaps, for good reason: he is not best placed for that, or to, as has been suggested, "step in and disregard those results". Disregard them on what basis and in favour of what "better" results?. If you look at the bit of the law that the IEBC is relying on in its dubious power-grab---the vague bit about "provisional" vs. "final" results---the most sensible interpretation, in line with the Constitution, would be to permit changes in accordance with changes officially made at the lower levels.
To my mind, though, there is a much larger issue here: Kenyans are obviously not yet ready to change the type of person they elect to "leadership". Are they, at least, prepared to change the "mechanics" into a more honest and less bothersome sort? ("Bothersome" in our part of the world = "serious mayhem".)
The numerous variations in our electoral laws are an interesting read. I took a look at a bunch of pre-2010 stuff, and I noted the endless activity in tinkering before and after; even RV Pundit's "proof" (see link above) is barely one month old! But the 2007-2008 disaster produced some sort of awakening---the new Constitution---and, as I see it, the issue now is whether the Constitution will prevail. I know my compatriots well, and I have few illusions, but I hope I will be surprised.
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I think you're an irritant.
That's not very nice. Here's a book for you: https://www.amazon.com/How-Win-Friends-Influence-People/dp/0671027034/ref=sr_1_1?ie=UTF8&qid=1495655065&sr=8-1&keywords=how+to+win+friends+and+influence
$0.73 on Kindle, $2.84 for used paperback.
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It appears Chebukati has no permission to change numbers or do some rocket science arithmetic that ROs and political party agents may have missed. In the citations you made, I haven't seen anything that allows him to fix the math or that sort of thing. It looks like those activities end with ROs.
As far as I can tell, he does not, and, perhaps, for good reason: he is not best placed for that, or to, as has been suggested, "step in and disregard those results". Disregard them on what basis and in favour of what "better" results?. If you look at the bit of the law that the IEBC is relying on in its dubious power-grab---the vague bit about "provisional" vs. "final" results---the most sensible interpretation, in line with the Constitution, would be to permit changes in accordance with changes officially made at the lower levels.
To my mind, though, there is a much larger issue here: Kenyans are obviously not yet ready to change the type of person they elect to "leadership". Are they, at least, prepared to change the "mechanics" into a more honest and less bothersome sort? ("Bothersome" in our part of the world = "serious mayhem".)
The numerous variations in our electoral laws are an interesting read. I took a look at a bunch of pre-2010 stuff, and I noted the endless activity in tinkering before and after; even RV Pundit's "proof" (see link above) is barely one month old! But the 2007-2008 disaster produced some sort of awakening---the new Constitution---and, as I see it, the issue now is whether the Constitution will prevail. I know my compatriots well, and I have few illusions, but I hope I will be surprised.
For once the constitution is clear and unambiguous. If Chebukati wishes he can assume the ROs are representing him in all the 290 Constituencies.
The high court has also been very clear in it's determination. It maintained fidelity to the constitution in its findings.
But I suspect the court of appeal is an "irritant" for jubilee as it hurries to the Supreme Court. I would be watching to see how it will reverse itself on a matter it has previously ruled in disfavor of one litigant when it too clearly spoke and was heard.
I dare say the Supreme Court dodged a bullet with it's misconduct by the Rawal case. As we say it's now suspended over molten lava hanging by a fast burning thread. If it gets this wrong and appears a useful tool to aid electoral fraud - for that would be the outcome - its survival wouldn't be guaranteed. Before am accused of issuance of threats, I want to remind everyone of the Gerrymandering by Kibaki prior to 2007 elections, stuffing the bench and the ECK. In hindsight I never understand why ODM went to the polls run by Kibaki's personal advocate Kihara Muttu?
Jubilee is stacking the cards and expecting NASA to sit and play.
Again and as I have said before, if it's a walk in the park why all these tricks? Going back to manual voting, importing kits whose quality isn't vouched for, etc? But still they feel they need the results to be corrected!
If the arithmetic is wrong and the votes exceed the actual voters that's not a matter to be corrected. How would anybody correct that? It's evidence that someone has tampered with the election. It moves to a different instance to be adjudicated by the courts. It's two weeks. Hopefully this time if its jubilee suing they can present evidence minus videos which they constantly rule inadmissible
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According to iebc the supreme court already ruled on this as part of cord petition of 2013.If chebukati is the presidential RO then he has the right to verify.All ROS are iebc staff.Final declaration at const just moves the manipulation down there...which harder to track than one main tallying center.Infact iebc main tallying center has been good sanity check and not rigging platform.Tallying center is watched by many.kibaki delayed results by making ROs disappear or turning their phones off only to appear with massaged numbers. NASA are thinking if those figures had been announced at every const tally center - there would be no way to manipulate. But how do ROs transmit the figures to Chebukati - as of now they still have to travel to Nairobi and personally deliver the certified copies of results- along the way they can manipulate the results - and Chebukati is suppose to just accept them?
The solution to reduce rigging is for all parties to really invest in shinning the light to all polling and tallying centers - agents & technology - parrallel tallying centers - media tallying centers - provisional electronic transmission - as long as Chebukait get to announce the FINAL results.
I believe most rigging will happen in either candidate strongholds were hostile agents will be intimidated or bought or they would betray their party - for tribal loyalty. That is where we need to focus on - Luo Nyanza, Central, Eastern and Rift Valley - where turn out can be as high as 95% (homa-bay).
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But what magic allows the Bomas guy to catch "mathematical errors" that all the party agents and IEBC folk at the constituency level have missed? Only a rigger insists on their having the ability to change at a far-removed center, tallied, verified and announced results of locally held elections.
Like Windy says, I cannot think of a single innocent reason why someone in Nairobi will want to or be best placed to change results from Turkana. And Pundit's arguments in this thread have not given even one good reason. IEBC chair feeling like he has a big important job and is not just a conveyor belt is not a serious concern. The IEBC conducts elections, everything that's been going on till now, including hiring abd training staff, preping ballots, logistics etc. That is important enough. IEBC's job is not to mess around with the voters' job by playing with results. What is in Nairobi that is not in Turkana to ensure sound mathematics?
And why is IEBC invested at all? What do they care whether the consitutency results are held to be final? They are supposed to be an uninterested party, are they not? At least it is so claimed. They just want to conduct elections: so what is their problem with the constitutional court's judgment? These IEBC shenanigans have convinced me even more than I was that IEBC cooked 2013 results at Bomas. No wonder it took 7 days. An innocent uninterested party like IEBC would have no problem with what the Court has said. They would just carry on as planned since they were not planning to change the election results anyway so it would not make a difference for them either way. Nothing will have changed for them. But for this crew, it seems Constituency R.O results being beyond altering changes everything. Gee, I wonder why......
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But what magic allows the Bomas guy to catch "mathematical errors" that all the party agents and IEBC folk at the constituency level have missed? Only a rigger insists on their having the ability to change at a far-removed center, tallied, verified and announced results of locally held elections.
Like Windy says, I cannot think of a single innocent reason why someone in Nairobi will want to or be best placed to change results from Turkana. And Pundit's arguments in this thread have not given even one good reason. IEBC chair feeling like he has a big important job and is not just a conveyor belt is not a serious concern. The IEBC conducts elections, everything that's been going on till now, including hiring abd training staff, preping ballots, logistics etc. That is important enough. IEBC's job is not to mess around with the voters' job by playing with results. What is in Nairobi that is not in Turkana to ensure sound mathematics?
And why is IEBC invested at all? What do they care whether the consitutency results are held to be final? They are supposed to be an uninterested party, are they not? At least it is so claimed. They just want to conduct elections: so what is their problem with the constitutional court's judgment? These IEBC shenanigans have convinced me even more than I was that IEBC cooked 2013 results at Bomas. No wonder it took 7 days. An innocent uninterested party like IEBC would have no problem with what the Court has said. They would just carry on as planned since they were not planning to change the election results anyway so it would not make a difference for them either way. Nothing will have changed for them. But for this crew, it seems Constituency R.O results being beyond altering changes everything. Gee, I wonder why......
Pundit's arrgument in summary is just one of discomfort. He is not comfortable with the ROs output, but he is comfortable with that of a man who has to - according to him - do more work of the same nature with more data, with more room for error, and no real access to the context, in a closed off office and come up with a number only he knows how he got.
When dealing with spoiled votes, RO's at polling stations do not attempt to read the mind of the voter and fix his/her vote. They reject them because they can't know what the voter wanted. I don't see it any different with Chebukati and Constituency ROs who return what in his judgement are obviously invalid results. He obviously has more work than announcing this result, otherwise he should be fired and his position advertized as a contract for only the election period.
If all parties have signed off on it, we just have to accept the result as is until otherwise resolved by a court. If it's egregious and obvious, then a court challenge should be made all the more easier.
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Pundit does not make sense anymore.
But what magic allows the Bomas guy to catch "mathematical errors" that all the party agents and IEBC folk at the constituency level have missed? Only a rigger insists on their having the ability to change at a far-removed center, tallied, verified and announced results of locally held elections.
Like Windy says, I cannot think of a single innocent reason why someone in Nairobi will want to or be best placed to change results from Turkana. And Pundit's arguments in this thread have not given even one good reason. IEBC chair feeling like he has a big important job and is not just a conveyor belt is not a serious concern. The IEBC conducts elections, everything that's been going on till now, including hiring abd training staff, preping ballots, logistics etc. That is important enough. IEBC's job is not to mess around with the voters' job by playing with results. What is in Nairobi that is not in Turkana to ensure sound mathematics?
And why is IEBC invested at all? What do they care whether the consitutency results are held to be final? They are supposed to be an uninterested party, are they not? At least it is so claimed. They just want to conduct elections: so what is their problem with the constitutional court's judgment? These IEBC shenanigans have convinced me even more than I was that IEBC cooked 2013 results at Bomas. No wonder it took 7 days. An innocent uninterested party like IEBC would have no problem with what the Court has said. They would just carry on as planned since they were not planning to change the election results anyway so it would not make a difference for them either way. Nothing will have changed for them. But for this crew, it seems Constituency R.O results being beyond altering changes everything. Gee, I wonder why......
Pundit's arrgument in summary is just one of discomfort. He is not comfortable with the ROs output, but he is comfortable with that of a man who has to - according to him - do more work of the same nature with more data, with more room for error, and no real access to the context, in a closed off office and come up with a number only he knows how he got.
When dealing with spoiled votes, RO's at polling stations do not attempt to read the mind of the voter and fix his/her vote. They reject them because they can't know what the voter wanted. I don't see it any different with Chebukati and Constituency ROs who return what in his judgement are obviously invalid results. He obviously has more work than announcing this result, otherwise he should be fired and his position advertized as a contract for only the election period.
If all parties have signed off on it, we just have to accept the result as is until otherwise resolved by a court. If it's egregious and obvious, then a court challenge should be made all the more easier.
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Pundit
There are a number of things that I treat as Knowledge Gaps in my existence. Some are compley ideas while others are simple day to day things. It could be an abbreviation or a set of numbers. I make a vow to check out the meaning when I see it but promptly forget as soon as its passed. I have to admit some are a result of a deliberate attempt on my mind's side to suppress and conceal. Perhaps I hate the truth that might emerge.
Yours is the 2013 Elections. I pray a day will come when you will either embrace the truth you know but choose to push the lie or you will actually seek to know what you don't know.
Every day you speak, I marvel at the ignorance coming from a mind I once thought unbiased and brilliant.
Are you saying Isaac Hassan did not kick out CORD agents before signing off on key documents and granting Uhuru a win?
Are you saying that Gen. Karangi did not threaten CORD and journalists at Bomas
Are you saying that fake results were not announced at Bomas sometimes to the amusement of journalists?
Bomas was a rigging centre. To be precise, the actual rigging started much earlier when Jubilee started sharing servers with IEBC and gained access to the database. a good % of the voters were then transferred to Jubilee zones to help mask the otherwise 120% voting.
Kenyatta University was used to produce the actual ballots to be stuffed in to the boxes in case of recounts.
Thousands of CORD voters were not able to vote being turned away as having already voted. Yet they had not voted. The reason was that Jubilee hackers had already voted for them.
I could go on and on. But what I can tell you is we used a lot of energy on finding out these details. It will not happen again. How we shall guarantee that is something Ill share openly in 2018 when NASA is in power.
Of course if you win fairly I have no problem whatever. But we lost too many people in the 80 through the 90s to Moi to allow the same back and take it lying down. The brief period of naivete is gone.
I already know you dismissal of this so you may as well save it.
According to iebc the supreme court already ruled on this as part of cord petition of 2013.If chebukati is the presidential RO then he has the right to verify.All ROS are iebc staff.Final declaration at const just moves the manipulation down there...which harder to track than one main tallying center.Infact iebc main tallying center has been good sanity check and not rigging platform.Tallying center is watched by many.kibaki delayed results by making ROs disappear or turning their phones off only to appear with massaged numbers. NASA are thinking if those figures had been announced at every const tally center - there would be no way to manipulate. But how do ROs transmit the figures to Chebukati - as of now they still have to travel to Nairobi and personally deliver the certified copies of results- along the way they can manipulate the results - and Chebukati is suppose to just accept them?
The solution to reduce rigging is for all parties to really invest in shinning the light to all polling and tallying centers - agents & technology - parrallel tallying centers - media tallying centers - provisional electronic transmission - as long as Chebukait get to announce the FINAL results.
I believe most rigging will happen in either candidate strongholds were hostile agents will be intimidated or bought or they would betray their party - for tribal loyalty. That is where we need to focus on - Luo Nyanza, Central, Eastern and Rift Valley - where turn out can be as high as 95% (homa-bay).
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Kababe
It is how it usually happens that makes the High Court Ruling unpleasant.
They announce the results honestly at every polling station. That is because they are afraid of cameras and the public.
Then people go home and they start to receive calls from the NIS instructing them on what numbers to transmit.
That is why the results must remain "provisional" to allow the IEBC to top up here and there and where they have given more than the voters, adjust by increasing the number of voters (that is why Hassan had to have multiple voter registers).
They lost multiple voter registers meaning we would all know how many people are legible to vote in any given polling station. The law provides for a maximum of 700 voters (was 500 but during the manual voting amendment by Jubilee the upped it to 700 to give themselves a shot at rigging)
The reason behind small numbers is so that the counting is done quickly and results announced and transmitted.
Note that in the past one polling station could have as many as 50K people or more. Such polling stations are created for rigging. Others were created which did not exist. This time we need to see all and NASA will deploy staff to each and every one. Jubilee knows this. So they want to give themselves a chance to change results they know they couldn't attempt to change at the local level lest they are lynched.
But what magic allows the Bomas guy to catch "mathematical errors" that all the party agents and IEBC folk at the constituency level have missed? Only a rigger insists on their having the ability to change at a far-removed center, tallied, verified and announced results of locally held elections.
Like Windy says, I cannot think of a single innocent reason why someone in Nairobi will want to or be best placed to change results from Turkana. And Pundit's arguments in this thread have not given even one good reason. IEBC chair feeling like he has a big important job and is not just a conveyor belt is not a serious concern. The IEBC conducts elections, everything that's been going on till now, including hiring abd training staff, preping ballots, logistics etc. That is important enough. IEBC's job is not to mess around with the voters' job by playing with results. What is in Nairobi that is not in Turkana to ensure sound mathematics?
And why is IEBC invested at all? What do they care whether the consitutency results are held to be final? They are supposed to be an uninterested party, are they not? At least it is so claimed. They just want to conduct elections: so what is their problem with the constitutional court's judgment? These IEBC shenanigans have convinced me even more than I was that IEBC cooked 2013 results at Bomas. No wonder it took 7 days. An innocent uninterested party like IEBC would have no problem with what the Court has said. They would just carry on as planned since they were not planning to change the election results anyway so it would not make a difference for them either way. Nothing will have changed for them. But for this crew, it seems Constituency R.O results being beyond altering changes everything. Gee, I wonder why......
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Remind me how the Supreme Court ruled.
According to iebc the supreme court already ruled on this as part of cord petition of 2013.If chebukati is the presidential RO then he has the right to verify.All ROS are iebc staff.Final declaration at const just moves the manipulation down there...which harder to track than one main tallying center.Infact iebc main tallying center has been good sanity check and not rigging platform.Tallying center is watched by many.kibaki delayed results by making ROs disappear or turning their phones off only to appear with massaged numbers. NASA are thinking if those figures had been announced at every const tally center - there would be no way to manipulate. But how do ROs transmit the figures to Chebukati - as of now they still have to travel to Nairobi and personally deliver the certified copies of results- along the way they can manipulate the results - and Chebukati is suppose to just accept them?
The solution to reduce rigging is for all parties to really invest in shinning the light to all polling and tallying centers - agents & technology - parrallel tallying centers - media tallying centers - provisional electronic transmission - as long as Chebukait get to announce the FINAL results.
I believe most rigging will happen in either candidate strongholds were hostile agents will be intimidated or bought or they would betray their party - for tribal loyalty. That is where we need to focus on - Luo Nyanza, Central, Eastern and Rift Valley - where turn out can be as high as 95% (homa-bay).
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According to iebc the supreme court already ruled on this as part of cord petition of 2013.If chebukati is the presidential RO then he has the right to verify.All ROS are iebc staff.Final declaration at const just moves the manipulation down there...which harder to track than one main tallying center.Infact iebc main tallying center has been good sanity check and not rigging platform.Tallying center is watched by many.kibaki delayed results by making ROs disappear or turning their phones off only to appear with massaged numbers. NASA are thinking if those figures had been announced at every const tally center - there would be no way to manipulate. But how do ROs transmit the figures to Chebukati - as of now they still have to travel to Nairobi and personally deliver the certified copies of results- along the way they can manipulate the results - and Chebukati is suppose to just accept them?
The solution to reduce rigging is for all parties to really invest in shinning the light to all polling and tallying centers - agents & technology - parrallel tallying centers - media tallying centers - provisional electronic transmission - as long as Chebukait get to announce the FINAL results.
I believe most rigging will happen in either candidate strongholds were hostile agents will be intimidated or bought or they would betray their party - for tribal loyalty. That is where we need to focus on - Luo Nyanza, Central, Eastern and Rift Valley - where turn out can be as high as 95% (homa-bay).
But the announced constituency results are announced publicly, including to the media immediately. So how does the R.O change results in the certificate? And dont all parties get some kind of copy? If he does that, it will be very easy to catch him and nullify that result...in court. Its not like the officially signed off result is held somewhere in secret. Chebukait gets to anounce the result, not alter them. He cannot announce a different result than that calculated by me at home using my phone in adding all the announced results. The R.O. who changes that midway to Nairobi is simply looking to end up in jail for election fraud; he will not be able to change results he announced at the constituency, which the court has ruled is final per the constitution. So if the concern is the point between the cinstituency and Chebukait, that does not seem all that difficult to resolve. If it is at the constituency, still waiting for the special Bomas magic that will resolve what IEBC people and party agents at that level cannot. It simply isnt there.
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Kadame
The history of people trying to prevent rigging by flooding polling stations and using the media failed. Kenneth Matiba had a high tech video camera in each polling station in Kenya. He lost. Kibaki had videos in his native Nyeri during KANU elections, a DC announced fake results. The GSU surrounded the location and Kibaki asked to ask his supporters to go home quietly or they'' taste teargas.
But in reality they didn't need all that force. The law allowed the DC in his role as the Returning Officer wide powers. He collected all the votes from polling stations and brought them to his HQs where his own people counted and recounted until the right candidate won.
The first move was to prescribe polling station voting. This saw KANU pack and go ndaani into oblivion.
Then Kibaki made nonsense of the reforms of the IPPG 97 . He unilaterally appointed commissioners, stuffed the high court and appointed APs as his election agents. Rigging seminars were conducted and drills on how to kill Luos held. We know the outcome and the reforms suggested out of that.
However in 2012, Raila went to bed and Hassan started changing the law using "regulations". I think Raila thought the moves would help him and he did not oppose.
It is these unconstitutional regulations that the IEBC wants to use.
The reason they are jittery is simple: Once the results are announced and the certificate issued, they cannot alter the results and give Uhuru the few more votes he needs in this or that county to jump over the 25% of the votes in 24 counties rule.
About jail term to ROs it won't happen any time soon. So many of them altered results. Boni Khalwale has documented the discrepancies between the results announced at the various polling centres and Constituencies and what was transmitted. In all the cases the RO sat and waited for a call from the NIS which provided the figures to transmit. The crowds had already gone home and the new figures contradicted what they had read. New forms were them produced and when CORD protested, Hasan ordered them all out and he announced Uhuru the winner. Most of those ROs are on the new list to preside over the 2017 elections and not surprisingly, Jubilee says they should!
The IEBC needs time and the opportunity.
They create both by labeling ROs results provisional. They deny the media and other the right to know the real results because everything out there is "provisional". They then slowly work up the numbers and announce the results at Bomas. Finally giving Uhuru the win.
You can imagine if the results are already well known. Media houses competing to share the outcomes and working their own totals. Whoever gets a commanding lead cannot suddenly get a boost from Tharaka-Nithi or Tiaty!
Openness is what Jubilee hates. It denies them the giza in which to rig elections.
We know they can stuff votes in Central and parts of RV. But they run in to the upper limit. NASA strongholds have more voters. They would need their computer hackers to "transfer" the voters if they have to avoid 120% of Kieni. Even then they would need to create new polling stations since the maximum number of the 700 voters per polling station would have been known. It is a nightmare for Jubilee!
But the announced constituency results are announced publicly, including to the media immediately. So how does the R.O change results in the certificate? And dont all parties get some kind of copy? If he does that, it will be very easy to catch him and nullify that result...in court. Its not like the officially signed off result is held somewhere in secret. Chebukait gets to anounce the result, not alter them. He cannot announce a different result than that calculated by me at home using my phone in adding all the announced results. The R.O. who changes that midway to Nairobi is simply looking to end up in jail for election fraud; he will not be able to change results he announced at the constituency, which the court has ruled is final per the constitution. So if the concern is the point between the cinstituency and Chebukait, that does not seem all that difficult to resolve. If it is at the constituency, still waiting for the special Bomas magic that will resolve what IEBC people and party agents at that level cannot. It simply isnt there.
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Welcome back Kadame. Good to see you again here. I think we all want the same thing - we want free and fair elections. I don't personally have problem with next level of ROs verifying the work of lower ROs. I don't expect the Const RO to just assume the POs result announced publicly in the polling station are final. We know from petitions filed that mistakes have been made - mathematical, transposition and etc. The reality is in polling station people mostly care about MCAs. At the const level - they care about MP. They Const ROs is in charge of six elections....they go on for 48hours..fatigue set in...and of course foul play...and you have people adding their own numbers.
If Chebukati is the RO for presidential election he should do his job as per constitution.
1) He should get all certified copies of every polling station presidential elections. Not just summaries at Const level.
2) He should then add up all polling station results - after verifing. Chebukait does by hiring staff to sanity check all polling station results, then entering them and adding them up again. Where there is a difference - then Const ROs and agents have to figure that out.
4) After that Chebukati as Presidential RO announce the winner - keep all certified copies - as received and as retallyed - for supreme court petitions. If there is any dispute - ballot boxes are securely kept in Const RO.
I don't see how that allow rigging in national tallying center - I see it as mandatory job for presidential RO.
Const RO is not the presidential RO.He RO for MCAS & MP - he tallies up and announces the winner - and is conveyor belt for Governor,Senator, Women Rep & Presidential. If there is rigging -then it can happen at every stage of the process - and all it takes is for IEBC staff, agents & media not doing their job.
CORD lost in 2013 in fair and free election - they had petition - which supreme court allowed - had the some ballots papers and paper trailed investigated - they came with nothing. They lost 7- or 9-NIL at supreme court.
The message I am getting here is rig at polling station - and that is final. IEBC then just become conveyor belt of really ridiculous results that end up with Chebukati announcing 20M kenyans voted out of 19m registered votes.
But the announced constituency results are announced publicly, including to the media immediately. So how does the R.O change results in the certificate? And dont all parties get some kind of copy? If he does that, it will be very easy to catch him and nullify that result...in court. Its not like the officially signed off result is held somewhere in secret. Chebukait gets to anounce the result, not alter them. He cannot announce a different result than that calculated by me at home using my phone in adding all the announced results. The R.O. who changes that midway to Nairobi is simply looking to end up in jail for election fraud; he will not be able to change results he announced at the constituency, which the court has ruled is final per the constitution. So if the concern is the point between the cinstituency and Chebukait, that does not seem all that difficult to resolve. If it is at the constituency, still waiting for the special Bomas magic that will resolve what IEBC people and party agents at that level cannot. It simply isnt there.
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Spreading rumours and lies as always. Supreme court sat, heard all that nonsense and said there was nothing like that. IEBC led by Hassan conducted free and fair elections. Supreme court did a sample of re-tallying and IEBC had all the bases covered.
Kadame
The history of people trying to prevent rigging by flooding polling stations and using the media failed. Kenneth Matiba had a high tech video camera in each polling station in Kenya. He lost. Kibaki had videos in his native Nyeri during KANU elections, a DC announced fake results. The GSU surrounded the location and Kibaki asked to ask his supporters to go home quietly or they'' taste teargas.
But in reality they didn't need all that force. The law allowed the DC in his role as the Returning Officer wide powers. He collected all the votes from polling stations and brought them to his HQs where his own people counted and recounted until the right candidate won.
The first move was to prescribe polling station voting. This saw KANU pack and go ndaani into oblivion.
Then Kibaki made nonsense of the reforms of the IPPG 97 . He unilaterally appointed commissioners, stuffed the high court and appointed APs as his election agents. Rigging seminars were conducted and drills on how to kill Luos held. We know the outcome and the reforms suggested out of that.
However in 2012, Raila went to bed and Hassan started changing the law using "regulations". I think Raila thought the moves would help him and he did not oppose.
It is these unconstitutional regulations that the IEBC wants to use.
The reason they are jittery is simple: Once the results are announced and the certificate issued, they cannot alter the results and give Uhuru the few more votes he needs in this or that county to jump over the 25% of the votes in 24 counties rule.
About jail term to ROs it won't happen any time soon. So many of them altered results. Boni Khalwale has documented the discrepancies between the results announced at the various polling centres and Constituencies and what was transmitted. In all the cases the RO sat and waited for a call from the NIS which provided the figures to transmit. The crowds had already gone home and the new figures contradicted what they had read. New forms were them produced and when CORD protested, Hasan ordered them all out and he announced Uhuru the winner. Most of those ROs are on the new list to preside over the 2017 elections and not surprisingly, Jubilee says they should!
The IEBC needs time and the opportunity.
They create both by labeling ROs results provisional. They deny the media and other the right to know the real results because everything out there is "provisional". They then slowly work up the numbers and announce the results at Bomas. Finally giving Uhuru the win.
You can imagine if the results are already well known. Media houses competing to share the outcomes and working their own totals. Whoever gets a commanding lead cannot suddenly get a boost from Tharaka-Nithi or Tiaty!
Openness is what Jubilee hates. It denies them the giza in which to rig elections.
We know they can stuff votes in Central and parts of RV. But they run in to the upper limit. NASA strongholds have more voters. They would need their computer hackers to "transfer" the voters if they have to avoid 120% of Kieni. Even then they would need to create new polling stations since the maximum number of the 700 voters per polling station would have been known. It is a nightmare for Jubilee!
But the announced constituency results are announced publicly, including to the media immediately. So how does the R.O change results in the certificate? And dont all parties get some kind of copy? If he does that, it will be very easy to catch him and nullify that result...in court. Its not like the officially signed off result is held somewhere in secret. Chebukait gets to anounce the result, not alter them. He cannot announce a different result than that calculated by me at home using my phone in adding all the announced results. The R.O. who changes that midway to Nairobi is simply looking to end up in jail for election fraud; he will not be able to change results he announced at the constituency, which the court has ruled is final per the constitution. So if the concern is the point between the cinstituency and Chebukait, that does not seem all that difficult to resolve. If it is at the constituency, still waiting for the special Bomas magic that will resolve what IEBC people and party agents at that level cannot. It simply isnt there.
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Like I said, one day you will be lucky to delve in to the 2013 elections and will be pleasantly surprised when lots of your ignorance is reduced.
You have to be ashamed of yourself citing a court dismissal as proof of no rigging. Let me give you examples of court petitions dismissed by the courts:
1. 1993 - High Court files Petition against Moi. Court dismisses the petition because Matiba did not sign the petition (on grounds of having had a stroke when Moiu detained him) and the court goes ahead to certify that Moi was validly elected! Note that there were so many acrobatics that the petition ended up being heard and determined by the Court of Appeal. All the judges involved would later lose their jobs and reputations on account of that petition.
2. Kibaki filed his following the 1997 election. It would not be heard and determined until briefly in 1999 when the court ruled on preliminary objections. It was thrown out on the grounds that Kibaki failed to penetrate the murderous Moi security to personally serve Moi - a provision turned in to law by the 1993 Matiba Petition!
The Supreme Court did not hear ALL the evidence. Once it ruled out the key evidence, I think CORD should have withdrawn from the case.
The whole idea behind judicial reforms was to end the use of technicalities to determine cases. Yet when it came to a matter crucial to the country, the SC chose a technicality. I would listen to you if the court had delved in to the evidence, then found nothing worth considering.
But then again, you are a Jubilee propagandist and any advantage must be celebrated. You are part of the retinue of a man you celebrate as "ruthless".
Hassan did not conduct free and fair elections. He was also found culpable in corruption. He was found to have received bribes by a British court.
There is no recount that could succeed. Like I have explained the centre at Kenyatta University produced marked ballot papers to top up areas where there had been virtual voting. Where ROs had manufactured results, the NIS ensured that marked ballot papers were added to make sure there is no failure in recounts.
Note am not convincing you. I already suspect you know all this. I am telling you so you and others know we know your game in 2013 and the plans for 2017.
$
Spreading rumours and lies as always. Supreme court sat, heard all that nonsense and said there was nothing like that. IEBC led by Hassan conducted free and fair elections. Supreme court did a sample of re-tallying and IEBC had all the bases covered.
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Here is pundit saying the Presidential election at Constituency level conducts itself.
Pundit, what does "verifying" entail? Where is it specified that the RO is only there for MCA and MP? and not President?
Welcome back Kadame. Good to see you again here. I think we all want the same thing - we want free and fair elections. I don't personally have problem with next level of ROs verifying the work of lower ROs. I don't expect the Const RO to just assume the POs result announced publicly in the polling station are final. We know from petitions filed that mistakes have been made - mathematical, transposition and etc. The reality is in polling station people mostly care about MCAs. At the const level - they care about MP. They Const ROs is in charge of six elections....they go on for 48hours..fatigue set in...and of course foul play...and you have people adding their own numbers.
If Chebukati is the RO for presidential election he should do his job as per constitution.
1) He should get all certified copies of every polling station presidential elections. Not just summaries at Const level.
2) He should then add up all polling station results - after verifing. Chebukait does by hiring staff to sanity check all polling station results, then entering them and adding them up again. Where there is a difference - then Const ROs and agents have to figure that out.
4) After that Chebukati as Presidential RO announce the winner - keep all certified copies - as received and as retallyed - for supreme court petitions. If there is any dispute - ballot boxes are securely kept in Const RO.
I don't see how that allow rigging in national tallying center - I see it as mandatory job for presidential RO.
Const RO is not the presidential RO.He RO for MCAS & MP - he tallies up and announces the winner - and is conveyor belt for Governor,Senator, Women Rep & Presidential. If there is rigging -then it can happen at every stage of the process - and all it takes is for IEBC staff, agents & media not doing their job.
CORD lost in 2013 in fair and free election - they had petition - which supreme court allowed - had the some ballots papers and paper trailed investigated - they came with nothing. They lost 7- or 9-NIL at supreme court.
The message I am getting here is rig at polling station - and that is final. IEBC then just become conveyor belt of really ridiculous results that end up with Chebukati announcing 20M kenyans voted out of 19m registered votes.
But the announced constituency results are announced publicly, including to the media immediately. So how does the R.O change results in the certificate? And dont all parties get some kind of copy? If he does that, it will be very easy to catch him and nullify that result...in court. Its not like the officially signed off result is held somewhere in secret. Chebukait gets to anounce the result, not alter them. He cannot announce a different result than that calculated by me at home using my phone in adding all the announced results. The R.O. who changes that midway to Nairobi is simply looking to end up in jail for election fraud; he will not be able to change results he announced at the constituency, which the court has ruled is final per the constitution. So if the concern is the point between the cinstituency and Chebukait, that does not seem all that difficult to resolve. If it is at the constituency, still waiting for the special Bomas magic that will resolve what IEBC people and party agents at that level cannot. It simply isnt there.
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I believe there has been rigging in every election in this country.That is why in each election high court has ruled against some seats. There was rigging in 2013. There will be rigging in 2017. In such a huge undertaken - you expect some people will attempt to game the system while others will make honest mistakes - the issue for me is whether the rigging is material enough to alter the outcome or not.
I believe like most people believe MOI won 92 & 97 election thanks to splintered opposition. He certainly won in parliament with about the same percentage. There was rigging but general consensus remained MOI had won fairly and squarely. There is no way Matiba would have won in 92 - with Kibaki taking half GEMA, Jaramogi taking Nyanza and western - and Moi basically taking the rest.
I didn't suppport Moi in 92 and 97 - I supported Kibaki with family. You certainly don't expect Matiba with 32Mps in 92 to become PORK :) - how would he ran business - in parliament of 210 Mps?
In 2002 - NARC won - fair and square - but there was some rigging. In 2013 - UhuRuto won fair and square - and there was some rigging. Brand new supreme court led by Mutunga returned a 7 -NIL verdict - ODM had 2 weeks to find all evidences - and they had agents everywhere - and that is constitution that Raila passed. If you wanted the supreme court to take more time - ammend the law. We are heading to 2017 election with same period of hearing petitions.
The exception was 2007 - and reaction of kenyans was obvious - spontaneous degeneration into worse violence ever experience in this country. And it very obvious Kibaki had brazenly rigged Raila out - he had really small majority in parliament (PNU -45mps), lost speaker of parliament - and had really no way of governing - without buying Kalonzo and accepting grand coalition. Thankfully it gave us new constitution.
1988 is also widely believed to have been rigged - and it gave us back multiparty democracy.
Like I said, one day you will be lucky to delve in to the 2013 elections and will be pleasantly surprised when lots of your ignorance is reduced.
You have to be ashamed of yourself citing a court dismissal as proof of no rigging. Let me give you examples of court petitions dismissed by the courts:
1. 1993 - High Court files Petition against Moi. Court dismisses the petition because Matiba did not sign the petition (on grounds of having had a stroke when Moiu detained him) and the court goes ahead to certify that Moi was validly elected! Note that there were so many acrobatics that the petition ended up being heard and determined by the Court of Appeal. All the judges involved would later lose their jobs and reputations on account of that petition.
2. Kibaki filed his following the 1997 election. It would not be heard and determined until briefly in 1999 when the court ruled on preliminary objections. It was thrown out on the grounds that Kibaki failed to penetrate the murderous Moi security to personally serve Moi - a provision turned in to law by the 1993 Matiba Petition!
The Supreme Court did not hear ALL the evidence. Once it ruled out the key evidence, I think CORD should have withdrawn from the case.
The whole idea behind judicial reforms was to end the use of technicalities to determine cases. Yet when it came to a matter crucial to the country, the SC chose a technicality. I would listen to you if the court had delved in to the evidence, then found nothing worth considering.
But then again, you are a Jubilee propagandist and any advantage must be celebrated. You are part of the retinue of a man you celebrate as "ruthless".
Hassan did not conduct free and fair elections. He was also found culpable in corruption. He was found to have received bribes by a British court.
There is no recount that could succeed. Like I have explained the centre at Kenyatta University produced marked ballot papers to top up areas where there had been virtual voting. Where ROs had manufactured results, the NIS ensured that marked ballot papers were added to make sure there is no failure in recounts.
Note am not convincing you. I already suspect you know all this. I am telling you so you and others know we know your game in 2013 and the plans for 2017.
$
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All elections are done in polling station and all the votes are counted there, results announced publicly there (all this done to avoid ballot stuffing during transportation) but that is not the end of the story for obvious reasons. The constitution requires the Returning Officer to verify and tally up the results. IEBC appoint ROs for all the elections.
Const RO is not a special RO or the only RO.
Const RO is responsible for MCA & MP election. He tally up, verify and issue the winners with certificate and prepare for any petition. He then becomes a conveyor belt for the other results. He send the governor/senate/women rep results to County RO - who then verify and tally up - and issues the winners with certificate & prepare for any petition. He also send the results to Chebukaiti - who is the presidential RO - whose mandate as const says is to verify and tally up presidential or referendum votes.
I think the court of appeal will overturn the high court rulling so do not end up with messed up process.
At end of the day we have to trust IEBC will independently conduct free and fair election. I don't know at what point IEBC became Jubilee. Jubilee bend over - send Hassan team home - and NASA got brand new IEBC.
Let IEBC conduct elections - and Supreme court (Presidential) or high court(others) - hear any petitions.
If there is any alteration made during this verifying and re-tallying - there is paper trail - lodge you complain in court and convince them.
Otherwise I don't think there is cure for mistrust of the supreme court and IEBC that NASA displays here.
Here is pundit saying the Presidential election at Constituency level conducts itself.
Pundit, what does "verifying" entail? Where is it specified that the RO is only there for MCA and MP? and not President?
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Pundit,
Where do you derive the word "vet" in all its forms (vetting, vetted)? The constitution provides for tabulation and announcement. No other role is assigned the RO. Even if you say the RO is Chebukati in all the 290 constituencies, he still gets the same powers assigned by the constitution - no more
(http://omollosview.com/wp-content/uploads/2017/05/Returning-Officers_role.jpg)
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Jubilee forced the IEBC to appeal because they feel they lost an advantage. The information we have is that Chebukati was not keen to appeal, but Chiloba worked closely with Jubilee to get the commision to force an appeal.
It is your opinion that the verdict will be overturned. My experience is such that cases heard and determined by a judge of three to five are never overturned. If they do, there would be suspicion of tampering. The last major case to be heard by multiple judges was the Rawal case. Eventually Ojwang and Njoki lost even though they voted for it on behalf of Jubilee.
My own prediction is that at best, there will be a majority decision in support of the High Court. The matter will then end at the Supreme Court contrary to the claims by Jubilee and IEBC that it will end at the Court of Appeal. It is at the Supreme Court that Maraga will start repaying his debt for being appointed Chief Justice.
All elections are done in polling station and all the votes are counted there, results announced publicly there (all this done to avoid ballot stuffing during transportation) but that is not the end of the story for obvious reasons. The constitution requires the Returning Officer to verify and tally up the results. IEBC appoint ROs for all the elections.
Const RO is not a special RO or the only RO.
Const RO is responsible for MCA & MP election. He tally up, verify and issue the winners with certificate and prepare for any petition. He then becomes a conveyor belt for the other results. He send the governor/senate/women rep results to County RO - who then verify and tally up - and issues the winners with certificate & prepare for any petition. He also send the results to Chebukaiti - who is the presidential RO - whose mandate as const says is to verify and tally up presidential or referendum votes.
I think the court of appeal will overturn the high court rulling so do not end up with messed up process.
At end of the day we have to trust IEBC will independently conduct free and fair election. I don't know at what point IEBC became Jubilee. Jubilee bend over - send Hassan team home - and NASA got brand new IEBC.
Let IEBC conduct elections - and Supreme court (Presidential) or high court(others) - hear any petitions.
If there is any alteration made during this verifying and re-tallying - there is paper trail - lodge you complain in court and convince them.
Otherwise I don't think there is cure for mistrust of the supreme court and IEBC that NASA displays here.
Here is pundit saying the Presidential election at Constituency level conducts itself.
Pundit, what does "verifying" entail? Where is it specified that the RO is only there for MCA and MP? and not President?
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Vet - mean you make sure all signatures and the forms are valid. Those are just english word. But election laws & IEBC regulation has dealt with the details of doing that.
Pundit,
Where do you derive the word "vet" in all its forms (vetting, vetted)? The constitution provides for tabulation and announcement. No other role is assigned the RO. Even if you say the RO is Chebukati in all the 290 constituencies, he still gets the same powers assigned by the constitution - no more
(http://omollosview.com/wp-content/uploads/2017/05/Returning-Officers_role.jpg)
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The usual romours and conjecture from someone with zero credibility. IEBC appealed. That is all we know. Jubilee seem to relish either way - having 290 ROs announcing final result favour the incumbent if you ask me.
Jubilee forced the IEBC to appeal because they feel they lost an advantage. The information we have is that Chebukati was not keen to appeal, but Chiloba worked closely with Jubilee to get the commision to force an appeal.
It is your opinion that the verdict will be overturned. My experience is such that cases heard and determined by a judge of three to five are never overturned. If they do, there would be suspicion of tampering. The last major case to be heard by multiple judges was the Rawal case. Eventually Ojwang and Njoki lost even though they voted for it on behalf of Jubilee.
My own prediction is that at best, there will be a majority decision in support of the High Court. The matter will then end at the Supreme Court contrary to the claims by Jubilee and IEBC that it will end at the Court of Appeal. It is at the Supreme Court that Maraga will start repaying his debt for being appointed Chief Justice.
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Virtually every commentator on this says its Jubilee behind the appeal. That is not including the not so secret information on social media about the goings on inside iEBC.
The truth is this:
2002 - after IPPG reforms providing for polling station counting and Party representation in Commission = KANU falls
2005 - Reforms in place - Kibaki sponsored Katiba fails in referendum
2007 - Kibaki reverses the reforms = Rigging and PEV
2010 - Constitution cements the IPPG reforms plus more
2012 - NIS secretly engineers watering down cheating Raila he is the beneficiary
2013 - Hassan uses the regulations to rig in Uhuru
2016 - CORD goes to the streets to remove unfair provisions in the laws
2016 - Uhuru attempts and partially succeeds in reversing the CORD gains
2017 - Maina Kiai obtains a High Court declaration that Results announced at the Constituency are final and not subject to change
2017 - Jubilee forces IEBC to appeal
When your son or was it daughter studies Political Science, that is what she will be taught.
The usual romours and conjecture from someone with zero credibility. IEBC appealed. That is all we know. Jubilee seem to relish either way - having 290 ROs announcing final result favour the incumbent if you ask me.
Jubilee forced the IEBC to appeal because they feel they lost an advantage. The information we have is that Chebukati was not keen to appeal, but Chiloba worked closely with Jubilee to get the commision to force an appeal.
It is your opinion that the verdict will be overturned. My experience is such that cases heard and determined by a judge of three to five are never overturned. If they do, there would be suspicion of tampering. The last major case to be heard by multiple judges was the Rawal case. Eventually Ojwang and Njoki lost even though they voted for it on behalf of Jubilee.
My own prediction is that at best, there will be a majority decision in support of the High Court. The matter will then end at the Supreme Court contrary to the claims by Jubilee and IEBC that it will end at the Court of Appeal. It is at the Supreme Court that Maraga will start repaying his debt for being appointed Chief Justice.
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Well thanks for the welcome, Pundit, and for the discussion, Omollo.
Pundit here's what I don't get:
Const RO is responsible for MCA & MP election. He tally up, verify and issue the winners with certificate and prepare for any petition. He then becomes a conveyor belt for the other results. He send the governor/senate/women rep results to County RO - who then verify and tally up - and issues the winners with certificate & prepare for any petition. He also send the results to Chebukaiti - who is the presidential RO - whose mandate as const says is to verify and tally up presidential or referendum votes
It doesnt matter who the R.O is, as long as he announces the result at the constitituency level. We need to know just what each constituency has decided for the President, as well as each county at the same time as we learn who the MP is. If the elections are done at the same polling station, exactly why should they be separated in the tallying process? I cannot imagine that giving all the polling stations to one guy in Nairobi to do the tallying has anything to do with effeciency. Why? So we can wait for one guy to tally up thousands of pollying stations when we could all just tally up 290 results in day 2 of elections like all countries do? How is that less prone to errors?
Elections don't require a mathematical whizz, its plain addition. 1+1. The R.O and agents can easily add up the presidential results as they do the M.Ps. Close enough to the polling stations to detect any monkey business. The idea that these should all be sent to one centre in Nairobi for us to wait for one week, does not come from a desire to avoid chaos but to foster it. How is it more effecient to have one fella verify and tally all the results from the whole country's pollying stations?? That's frankly ridiculous. That process of transfer and the enourmous work involved can only create room for more of the errors you worry about to occur.
It's like devolution: the close enough to the action the counting, verification, tallying, and announcement is, the small enough the area of management, the better it can be, the easier to detect faked forms and results. Creating a huge beauractic monster in Nairobi that claims to verify forms from Mandera polling stations better than the R.Os and agents that oversaw things there is both ineficient and unnecessary piling of work and completely lacks transparency.
And in any case, the R.O still does the verification and tallying, doesnt he? They are just claimed to be "provisional" until Chebukait, holed up in his office in Nairobi, signs off on them after applying special magic to verify their accuracy better than guys at the various constituencies... So there is absolutely no change to the process introduced by the court to warrant fears of chaos. They just say that the constitutency results are final, not provisional. Everything remains the same for IEBC who supposedly are not planning any monkey business.
If there is no monkey business, Chebukait should not care that the court has split the job into two: the polling station forms results are gathered and announced at the constituency, (which is already the case) which announced results chebukait tallies and announces in Nairobi. He just does not get to purport to verify pollying stations results better than people on the ground, which is ridiculous.
After all, if the monkey business has already occurred huko chini--and this is the question IEBC couldnt answer when posed by the High Court's Constitutional Court--what will Chebukait be able to do about it? What special mechanisms does he have in Nairobi to "correct" the monkey business? None. Interfering at that level will therefore be assigning himself vast quasi-judicial powers the constitution does not give him. If it is a simple issue of addition, agreed upon by all party agents, that can be done by anybody with standard 4 maths and a calculator. The agents and IEBC guys are simply there to agree on what the results were for each station, which have all been announcdd, and they do the simple standard 4 math together. Done. Nothing more Chebukait can add. If he claims to do more, he is confessing to interfering in a fraudulent manner or pretending to be a judge.
That he cares so much when he is supposed to be uninterested shows me he is acting on behalf of interested parties and not himself. I have never heard of a country that waits one week to hear simple addition mathematics. The IEBC's plan is a huge bureaucratic mess, ineffient and leaving huge spaces for malpractice.
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I am proposing that each RO be given two calculators and one manual backup in the name of a University double mathematics major
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Interesting kadame. So you think results announced by PO should be provisional and Const RO makes the final call but Chebukati as presidential RO cannot audit those results? All I am getting is here is that you don't trust Chebukati. I don't see any problem with Chebukati receiving all results from all polling stations, vet/audit, tally and announce the results.
Well thanks for the welcome, Pundit, and for the discussion, Omollo.
Pundit here's what I don't get:
Const RO is responsible for MCA & MP election. He tally up, verify and issue the winners with certificate and prepare for any petition. He then becomes a conveyor belt for the other results. He send the governor/senate/women rep results to County RO - who then verify and tally up - and issues the winners with certificate & prepare for any petition. He also send the results to Chebukaiti - who is the presidential RO - whose mandate as const says is to verify and tally up presidential or referendum votes
It doesnt matter who the R.O is, as long as he announces the result at the constitituency level. We need to know just what each constituency has decided for the President, as well as each county at the same time as we learn who the MP is. If the elections are done at the same polling station, exactly why should they be separated in the tallying process? I cannot imagine that giving all the polling stations to one guy in Nairobi to do the tallying has anything to do with effeciency. Why? So we can wait for one guy to tally up thousands of pollying stations when we could all just tally up 290 results in day 2 of elections like all countries do? How is that less prone to errors?
Elections don't require a mathematical whizz, its plain addition. 1+1. The R.O and agents can easily add up the presidential results as they do the M.Ps. Close enough to the polling stations to detect any monkey business. The idea that these should all be sent to one centre in Nairobi for us to wait for one week, does not come from a desire to avoid chaos but to foster it. How is it more effecient to have one fella verify and tally all the results from the whole country's pollying stations?? That's frankly ridiculous. That process of transfer and the enourmous work involved can only create room for more of the errors you worry about to occur.
It's like devolution: the close enough to the action the counting, verification, tallying, and announcement is, the small enough the area of management, the better it can be, the easier to detect faked forms and results. Creating a huge beauractic monster in Nairobi that claims to verify forms from Mandera polling stations better than the R.Os and agents that oversaw things there is both ineficient and unnecessary piling of work and completely lacks transparency.
And in any case, the R.O still does the verification and tallying, doesnt he? They are just claimed to be "provisional" until Chebukait, holed up in his office in Nairobi, signs off on them after applying special magic to verify their accuracy better than guys at the various constituencies... So there is absolutely no change to the process introduced by the court to warrant fears of chaos. They just say that the constitutency results are final, not provisional. Everything remains the same for IEBC who supposedly are not planning any monkey business.
If there is no monkey business, Chebukait should not care that the court has split the job into two: the polling station forms results are gathered and announced at the constituency, (which is already the case) which announced results chebukait tallies and announces in Nairobi. He just does not get to purport to verify pollying stations results better than people on the ground, which is ridiculous.
After all, if the monkey business has already occurred huko chini--and this is the question IEBC couldnt answer when posed by the High Court's Constitutional Court--what will Chebukait be able to do about it? What special mechanisms does he have in Nairobi to "correct" the monkey business? None. Interfering at that level will therefore be assigning himself vast quasi-judicial powers the constitution does not give him. If it is a simple issue of addition, agreed upon by all party agents, that can be done by anybody with standard 4 maths and a calculator. The agents and IEBC guys are simply there to agree on what the results were for each station, which have all been announcdd, and they do the simple standard 4 math together. Done. Nothing more Chebukait can add. If he claims to do more, he is confessing to interfering in a fraudulent manner or pretending to be a judge.
That he cares so much when he is supposed to be uninterested shows me he is acting on behalf of interested parties and not himself. I have never heard of a country that waits one week to hear simple addition mathematics. The IEBC's plan is a huge bureaucratic mess, ineffient and leaving huge spaces for malpractice.
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Interesting kadame. So you think results announced by PO should be provisional and Const RO makes the final call but Chebukati as presidential RO cannot audit those results? All I am getting is here is that you don't trust Chebukati. I don't see any problem with Chebukati receiving all results from all polling stations, vet/audit, tally and announce the results.
Apart from the law not allowing him to change the results, the system works better if you have a single source of information for the final result - the certified results publicly announced at the lower levels. It makes it easy for everyone to keep up with the numbers and trends and know who is going to be announced winner, even if the Chebukati decides to take a week and consult before making the announcement - a ceremonial action really. The math is not complicated as Kadame points out.
In the 2013 election, it took IEBC months to compile and publicize a final official tally. The only reason I can think of was some numbers did not look right and had to be made to look right - maybe there is another one, but my brain hurts trying to imagine what it could be. How they fixed the math remains a mystery, which goes against any claims of transparency.
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That, Termie, is the basic problem.
We need the results read at polling stations and then released by ROs at Constituencies. While the IEBC is still busy grandstanding for TV, we would already know who won.
They want Bomas to glue people there on screens weeks after the end of the elections as they cook figures and threaten the media. There is no such thing as provisional results.
Interesting kadame. So you think results announced by PO should be provisional and Const RO makes the final call but Chebukati as presidential RO cannot audit those results? All I am getting is here is that you don't trust Chebukati. I don't see any problem with Chebukati receiving all results from all polling stations, vet/audit, tally and announce the results.
Apart from the law not allowing him to change the results, the system works better if you have a single source of information for the final result - the certified results publicly announced at the lower levels. It makes it easy for everyone to keep up with the numbers and trends and know who is going to be announced winner, even if the Chebukati decides to take a week and consult before making the announcement - a ceremonial action really. The math is not complicated as Kadame points out.
In the 2013 election, it took IEBC months to compile and publicize a final official tally. The only reason I can think of was some numbers did not look right and had to be made to look right - maybe there is another one, but my brain hurts trying to imagine what it could be. How they fixed the math remains a mystery, which goes against any claims of transparency.
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That, Termie, is the basic problem.
We need the results read at polling stations and then released by ROs at Constituencies. While the IEBC is still busy grandstanding for TV, we would already know who won.
They want Bomas to glue people there on screens weeks after the end of the elections as they cook figures and threaten the media. There is no such thing as provisional results.
Interesting kadame. So you think results announced by PO should be provisional and Const RO makes the final call but Chebukati as presidential RO cannot audit those results? All I am getting is here is that you don't trust Chebukati. I don't see any problem with Chebukati receiving all results from all polling stations, vet/audit, tally and announce the results.
Apart from the law not allowing him to change the results, the system works better if you have a single source of information for the final result - the certified results publicly announced at the lower levels. It makes it easy for everyone to keep up with the numbers and trends and know who is going to be announced winner, even if the Chebukati decides to take a week and consult before making the announcement - a ceremonial action really. The math is not complicated as Kadame points out.
In the 2013 election, it took IEBC months to compile and publicize a final official tally. The only reason I can think of was some numbers did not look right and had to be made to look right - maybe there is another one, but my brain hurts trying to imagine what it could be. How they fixed the math remains a mystery, which goes against any claims of transparency.
Yep. His only impactful decision on the result should be whether he has 10 small flags or a massive wall to wall flag behind him, maybe traditional dancers from 42 tribes, when he makes the announcement that is already known.
It also makes disputes easy to solve because you don't have rely on IEBC to make the information available. If headquarters have a different summary, the authoritative reference should always be the lower certified result.
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If provisional electronic transmission works even for 2% of the polling station as it did in 2013 then you already know the winner - because like a survey - those polling station randomly reporting will reflect the overall results unless it very tight poll - but you'll have CORD and Kericho KANU like theory that somebody inject a GEOMTRIC Progression algorithm that keep the margin :).
Rigging like happen in 2007 is easy to detect - where someone is leading by 1m - before certainly someone else catches up.
The constitution clearly talk about 1) provisional electronic and 2) final - certified results - Chebukati has to get the final certified election results of every polling station from every Returning Officer. Otherwise nobody want ODM like nomination where every candidate has their own RO announcing final results and issuing certificate. These are serious matters.
Once again rigging can happen in every stage. As of now we are in never ending distrust game where NASA keep shifting the goal post. Trust me if Jubilee say fine (which I think they have by letting NASA fry themselves in their own fat) - final results at const level - NASA will say NO :) It was we don't trust Hassan - we don't trust Mutunga - now we don't trust Chebukati - we don't trust Chiluba - and we don't even trust Major Oswago from Bondo.
Imagine if Chebukati or Chiluba was Kikiyu from Gatundu or Kalenjin :). As it were they are luhyas - 2nd plank of NASA. Jubilee are not questioning their ethnicity.
Now the next game after NASA got this Maina Kiai wish of final result - is to distrust every Const Returning Officer with Kalenjin or Kikuyu name :) :) this is hilarious if it was not tragic..
If I was Chebukati I would not even appeal this - knowing NASA are not coming with clean hands - I would deflect the blame to const ROs - and like Kivuitu say I am just announcing every crap as I receive them. This is what actually happen in 2007 where Kibaki made ROs dissappear (turn of their phones), cook figures again and held Kivuitu neck to announce the results as they came. Now we empowering ROS to do as they wish...and doing away with presidential verification & tallying center - at Bomasa - watched keenly by everyone.
How are you gonna hold 290 const ROs accountable for presidential vote? What if violence erupts and there is no count done there.
If I want to rig say Kiambu vote - I buy or intimidate the RO to announce 99% voted for Uhuru - he announced and it becomes final. If you disagree - you appeal later - all the fake parties agents and fake presidential agents will duly sign off those results - NASA doesn't have to sign it. There is actually no worry for RO when he reaches Nairobi with cooked certified final results. As gok - RO in opposition zone can also be made to announce any results - coz he has police protection - and can kick anybody out of the tallying center anytime.
we are not solving the problem - we are exacerbating it - instead of another extra level of scrutiny = where parties can complain to chebukati that results are cooked - we are tying his hands.kibaki had to threaten kivuitu. Now Uhuru if he wants doesn't have to. He has incumbency - prov admin, police, NIS and lots of money - to streamroll most of ROS - and to block any opposition leaning RO from playing games.
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If provisional electronic transmission works even for 2% of the polling station as it did in 2013 then you already know the winner - because like a survey - those polling station randomly reporting will reflect the overall results unless it very tight poll - but you'll have CORD and Kericho KANU like theory that somebody inject a GEOMTRIC Progression algorithm that keep the margin :).
Rigging like happen in 2007 is easy to detect - where someone is leading by 1m - before certainly someone else catches up.
The constitution clearly talk about 1) provisional electronic and 2) final - certified results - Chebukati has to get the final certified election results of every polling station from every Returning Officer. Otherwise nobody want ODM like nomination where every candidate has their own RO announcing final results and issuing certificate. These are serious matters.
Once again rigging can happen in every stage. As of now we are in never ending distrust game where NASA keep shifting the goal post. Trust me if Jubilee say fine (which I think they have by letting NASA fry themselves in their own fat) - final results at const level - NASA will say NO :) It was we don't trust Hassan - we don't trust Mutunga - now we don't trust Chebukati - we don't trust Chiluba - and we don't even trust Major Oswago from Bondo.
Imagine if Chebukati or Chiluba was Kikiyu from Gatundu or Kalenjin :). As it were they are luhyas - 2nd plank of NASA. Jubilee are not questioning their ethnicity.
Now the next game after NASA got this Maina Kiai wish of final result - is to distrust every Const Returning Officer with Kalenjin or Kikuyu name :) :) this is hilarious if it was not tragic..
If I was Chebukati I would not even appeal this - knowing NASA are not coming with clean hands - I would deflect the blame to const ROs - and like Kivuitu say I am just announcing every crap as I receive them. This is what actually happen in 2007 where Kibaki made ROs dissappear (turn of their phones), cook figures again and held Kivuitu neck to announce the results as they came. Now we empowering ROS to do as they wish...and doing away with presidential verification & tallying center - at Bomasa - watched keenly by everyone.
How are you gonna hold 290 const ROs accountable for presidential vote? What if violence erupts and there is no count done there.
If I want to rig say Kiambu vote - I buy or intimidate the RO to announce 99% voted for Uhuru - he announced and it becomes final. If you disagree - you appeal later - all the fake parties agents and fake presidential agents will duly sign off those results - NASA doesn't have to sign it. There is actually no worry for RO when he reaches Nairobi with cooked certified final results. As gok - RO in opposition zone can also be made to announce any results - coz he has police protection - and can kick anybody out of the tallying center anytime.
we are not solving the problem - we are exacerbating it - instead of another extra level of scrutiny = where parties can complain to chebukati that results are cooked - we are tying his hands.kibaki had to threaten kivuitu. Now Uhuru if he wants doesn't have to. He has incumbency - prov admin, police, NIS and lots of money - to streamroll most of ROS - and to block any opposition leaning RO from playing games.
I agree NASA or whoever loses will probably complain anyway. And they should if it is founded. This approach also makes it easy for them(NASA or Jubilee) to point out their beef instead of arguing with a guy who made a decision in an opaque manner. It also saves Chebukati the trouble of having to deploy GSU just to make the announcement. Just trust the ROs. Accountability rests not with individual RO's but IEBC - mistakes happen; if they are big enough, the courts are there to fix that.
Your concerns about 290 ROs going rogue are unfounded - I think the more real concern for those bent on rigging is how to pull it off with so many variables to control. This kind of scenario happens regularly in the US without a hitch. That is why CNN can call the election.
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Do you have evidence that cooking has been happening at National verification & tallying center or not. I find it hard to believe. Every RO is like chebukati - he has whole company of police officers at his disposal - and can pretty much kick anybody out of the const tallying center.
The good thing with national verification & tallying center - is that parties can complain to Chebukati with evidence from every polling station - if the RO goes rogue and announce his things - and Chebukati can say - how did you add that up? That doesn't add up correctly.
Now we are shifting the rigging game to un-vetted un-known ROs who don't care if they were given 5m to alter the results. At least we have vetted Chebukati. I rather trust him than some faceless RO .
I agree NASA or whoever loses will probably complain anyway. And they should if it is founded. This approach also makes it easy for them(NASA or Jubilee) to point out their beef instead of arguing with a guy who made a decision in an opaque manner. It also saves Chebukati the trouble of having to deploy GSU just to make the announcement. Just trust the ROs. Accountability rests not with individual RO's but IEBC - mistakes happen; if they are big enough, the courts are there to fix that.
Your concerns about 290 ROs going rogue are unfounded - I think the more real concern for those bent on rigging is how to pull it off with so many variables to control. This kind of scenario happens regularly in the US without a hitch. That is why CNN can call the election.
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And it really hilarious comparing US or developed world election with ours. People in those places are not as corrupt as here. That is why election in US are conducted by local folks and results announced quickly. Kenya is set to spend maybe 40-50Billion kshs because you simply cannot trust the system. Probably the most expensive election in the world....with biometrics, electronic transmission and long drawn process...that end of the day ....most of losers will not accept anyway.
Here you don't one lightening quick election results - you water to build more controls - you want people verifying everything.
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Do you have evidence that cooking has been happening at National verification & tallying center or not. I find it hard to believe. Every RO is like chebukati - he has whole company of police officers at his disposal - and can pretty much kick anybody out of the const tallying center.
The good thing with national verification & tallying center - is that parties can complain to Chebukati with evidence from every polling station - if the RO goes rogue and announce his things - and Chebukati can say - how did you add that up? That doesn't add up correctly.
Now we are shifting the rigging game to un-vetted un-known ROs who don't care if they were given 5m to alter the results. At least we have vetted Chebukati. I rather trust him than some faceless RO .
I agree NASA or whoever loses will probably complain anyway. And they should if it is founded. This approach also makes it easy for them(NASA or Jubilee) to point out their beef instead of arguing with a guy who made a decision in an opaque manner. It also saves Chebukati the trouble of having to deploy GSU just to make the announcement. Just trust the ROs. Accountability rests not with individual RO's but IEBC - mistakes happen; if they are big enough, the courts are there to fix that.
Your concerns about 290 ROs going rogue are unfounded - I think the more real concern for those bent on rigging is how to pull it off with so many variables to control. This kind of scenario happens regularly in the US without a hitch. That is why CNN can call the election.
Right now I don't have evidence for anything. I am just saying we have to trust those guys. We have to trust the vetted IEBC do a good job in deciding who to hire for those positions. They are already entrusted with Senators, Women Reps etc, and they generally do a decent job.
As you say, they can hypothetically be intimidated to do one thing at any level all the way to Chebukati. The problem is that when it's done at Chebukati level, it can be done in a manner that permits the theft to go undetected, because he can make "corrections" that only he knows how. If a rogue RO announces a wrong result, you don't have to depend on anything but the certified results from polling stations to show he was wrong. It's riskier to rig at that level because it's visible and harder to coordinate a "clean" kill.
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According to iebc the supreme court already ruled on this as part of cord petition of 2013.
Yes, IEBC is correct that the Supreme Court already ruled on such matters. The most recent ruling does in fact refer to that Supreme Court ruling. Please read it carefully:
The Commission has no power to verify or confirm the results declared by the constituency returning officer. This is what the Supreme Court stated in Joho –v- Shabhal case when considering regulation 83 of the Elections (General) Regulations 2012, section 39 of the Elections Act and Articles 86(b) and (c) of the Constitution:-
“Once the returning officer makes a decision regarding the validity of a ballot or a vote, this decision becomes final, and only challengeable in an election petition. The mandate of the returning officer, according to regulation 83(3), terminates upon the return of the persons – elect to the Commission. The issuance of the certificate in Form 38 to the persons elected indicates the termination of the returning officer’s mandate, thus shifting any issue of validity, to the election court.”
http://kenyalaw.org/caselaw/cases/view/133874/
That seems clear enough. And it refers to all results: MCA, Governor, MP, Presidential, etc., a point made in the latest ruling:
Regulation 75(2) states that:
“(2) The presiding officer shall carry out the counting of votes for the respective elective posts in the following order –
a. president;
b. member of the National Assembly;
c. member of the County Assembly;
d. senator;
e. county woman representative in the National Assembly; and
f. county governor.”
Regulation 83(3) provides that –
“3. The decisions of the returning officer on the validity or otherwise of a ballot paper or vote under this regulation shall be final except in an election petition.”
http://kenyalaw.org/caselaw/cases/view/133874/
A key point here is to note that the red also obviously includes the blue.
You ask what happens in the case of questionable results:
and Chebukati is suppose to just accept them?
He may "raise the alarm". He may even (for a presidential election) ask the Supreme Court to get involved before any results are announced. What he does not have the power to do is to reject any results, tinker with any results, etc. He is like a private citizen who encounters a criminal going about his "work": he may blow a firimbi, effect a citizen's arrest and frogmarch the perp to the police station, etc. .... but he may not confiscate the perp's loot, carry out a trial, etc. The Supreme Court ruling mentioned above makes things quite clear.
I encourage people to take a break from arguing and go read (carefully) both the relevant law and the latest ruling.
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According to iebc the supreme court already ruled on this as part of cord petition of 2013.
Yes, IEBC is correct that the Supreme Court already ruled on such matters. The most recent ruling does in fact refer to that Supreme Court ruling. Please read it carefully:
The Commission has no power to verify or confirm the results declared by the constituency returning officer. This is what the Supreme Court stated in Joho –v- Shabhal case when considering regulation 83 of the Elections (General) Regulations 2012, section 39 of the Elections Act and Articles 86(b) and (c) of the Constitution:-
“Once the returning officer makes a decision regarding the validity of a ballot or a vote, this decision becomes final, and only challengeable in an election petition. The mandate of the returning officer, according to regulation 83(3), terminates upon the return of the persons – elect to the Commission. The issuance of the certificate in Form 38 to the persons elected indicates the termination of the returning officer’s mandate, thus shifting any issue of validity, to the election court.”
http://kenyalaw.org/caselaw/cases/view/133874/ (http://kenyalaw.org/caselaw/cases/view/133874/)
That seems clear enough. And it refers to all results: MCA, Governor, MP, Presidential, etc., a point made in the latest ruling:
Regulation 75(2) states that:
“(2) The presiding officer shall carry out the counting of votes for the respective elective posts in the following order –
a. president;
b. member of the National Assembly;
c. member of the County Assembly;
d. senator;
e. county woman representative in the National Assembly; and
f. county governor.”
Regulation 83(3) provides that –
“3. The decisions of the returning officer on the validity or otherwise of a ballot paper or vote under this regulation shall be final except in an election petition.”
http://kenyalaw.org/caselaw/cases/view/133874/ (http://kenyalaw.org/caselaw/cases/view/133874/)
A key point here is to note that the red also obviously includes the blue.
You ask what happens in the case of questionable results:
and Chebukati is suppose to just accept them?
He may "raise the alarm". He may even (for a presidential election) ask the Supreme Court to get involved before any results are announced. What he does not have the power to do is to reject any results, tinker with any results, etc. He is like a private citizen who encounters a criminal going about his "work": he may blow a firimbi, effect a citizen's arrest and frogmarch the perp to the police station, etc. .... but he may not confiscate the perp's loot, carry out a trial, etc. The Supreme Court ruling mentioned above makes things quite clear.
I encourage people to take a break from arguing and go read (carefully) both the relevant law and the latest ruling.
Not having an adversarial relationship with the facts, I can't argue with the main points. Your last paragraph actually raises an important bit. Does that mean, Chebukati's job is not just to defend the outcome in court, but that he can also actually argue against it? That he can be a party to an election petition on the side of a plaintiff? Or even be the main plaintiff?
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Not having an adversarial relationship with the facts, I can't argue with the main points. Your last paragraph actually raises an important bit. Does that mean, Chebukati's job is not just to defend the outcome in court, but that he can also actually argue against it? That he can be a party to an election petition on the side of a plaintiff? Or even be the main plaintiff?
Perhaps I phrased that poorly; I'm not sure and I doubt that he could do anything directly. Basically, the Supreme Court gave an Advisory Opinion in which it stated that it could entertain arguments before the final results were issued:
[102] Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election.
...
[104] It is our unanimous opinion that the validity of the Presidential election is not for determination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.
http://kenyalaw.org/caselaw/cases/view/85286
There is a lack of clarity as to who could actually bring forth the matter, but I imagine Chebukati could do it indirectly by getting an appropriate party to get involved. The key point, though, is that, read together with the other rulings, Chebukati and his IEBC appear to be so constrained that the best they can hope for is the involvement of the courts where they think there is a major problem. It has been suggested, for example, that if, say, some signed-for constituency results that show 110% of registered voters performing, then the IEBC should reject the results. That seems reasonable, but what is the legal basis?
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Not having an adversarial relationship with the facts, I can't argue with the main points. Your last paragraph actually raises an important bit. Does that mean, Chebukati's job is not just to defend the outcome in court, but that he can also actually argue against it? That he can be a party to an election petition on the side of a plaintiff? Or even be the main plaintiff?
Perhaps I phrased that poorly; I'm not sure and I doubt that he could do anything directly. Basically, the Supreme Court gave an Advisory Opinion in which it stated that it could entertain arguments before the final results were issued:
[102] Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election.
...
[104] It is our unanimous opinion that the validity of the Presidential election is not for determination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.
http://kenyalaw.org/caselaw/cases/view/85286 (http://kenyalaw.org/caselaw/cases/view/85286)
There is a lack of clarity as to who could actually bring forth the matter, but I imagine Chebukati could do it indirectly by getting an appropriate party to get involved. The key point, though, is that, read together with the other rulings, Chebukati and his IEBC appear to be so constrained that the best they can hope for is the involvement of the courts where they think there is a major problem. It has been suggest, for example, that if, say, some signed-for constituency results that show 110% of registered voters performing, then the IEBC should reject the results. That seems reasonable, but what is the legal basis?
Got ya. Makes sense. I guess if he has 110% turnout(or 95% for that matter) he just has to go with it. If an aggrieved party comes forward with a petition, he can then choose to support it.
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How would a 110% turnout be announced without anybody raising an alarm before, no agent anywhere? This is the kind of thing that should lead to an injunction immediately which should then be followed by an order for recount/retally etc. In the Bush vs Gore drama in 2000 I remember a bunch of courts being involved, from Florida to the US Supreme Court. I was too young to understand the nitty gritty but I recall the fiasco. I guess that's what happens in a functioning electoral system when there are disputes re the ballots etc. You don't just have one guy who handles the election decide on his own with his own formula how to sort the mess.
What I'm not clear on: the scenario Pundit presented. Everything is done well on the ground then in transit the certificate is replaced by a new fake one and presented to Chebukati. Is he allowed to insist on the result as announced (assuming there's clear proof) or just go ahead with whatever scrap of paper a returning officer hands over to him?
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What I'm not clear on: the scenario Pundit presented. Everything is done well on the ground then in transit the certificate is replaced by a new fake one and presented to Chebukati. Is he allowed to insist on the result as announced (assuming there's clear proof) or just go ahead with whatever scrap of paper a returning officer hands over to him?
Can he tell that it's a fake or not? If he can, then there is no issue: he must not accept a fake. The law does not permit him to get into certain issues regarding the numbers, but it does not prevent from authenticating signatures and so forth. Indeed it is a requirement (explicit or implicit) that he verify the sources of the numbers; he can't just accept anything which says "signed, by returning officer X".
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How would a 110% turnout be announced without anybody raising an alarm before, no agent anywhere? This is the kind of thing that should lead to an injunction immediately which should then be followed by an order for recount/retally etc. In the Bush vs Gore drama in 2000 I remember a bunch of courts being involved, from Florida to the US Supreme Court. I was too young to understand the nitty gritty but I recall the fiasco. I guess that's what happens in a functioning electoral system when there are disputes re the ballots etc. You don't just have one guy who handles the election decide on his own with his own formula how to sort the mess.
If 110% leads to an injuction, what about 90%? Granted, one is literally impossible, the other is practically impossible. Australia, where there is a mandatory voting law, has been able to get upto around 90% turnout. Yet, that number would not raise hustles in Kenya. I think if nobody cares, we have to live with it.
There are two types of phony. The type you can detect right away, and the kind a person interested in rigging can thrive with. A Chebukati level rigging operation will always make sure the numbers "add up". But either case, still requires someone with standing to make the right complaint.
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The jubilant has waded in by way of the mortician.
He does not put as much stock in the law as in the integrity of Chebukati. Chebukati is trustworthy, who cares what the law says?, seems to be the thrust of his argument.
IEBC also shies away from any specific laws preferring to highlight the "alarming prospect of 290 petitions" without citing any supporting legal basis.
The government’s chief legal adviser yesterday defended the Wafula Chebukati-led IEBC team, saying they are not “a vote-stealing cartel” as insinuated by the opposition.
Attorney General Githu Muigai urged the Court of Appeal to give the Independent Electoral and Boundaries Commission the final say on the announcement of the Presidential election results.
Muigai told a five-judge bench to be on the side of caution and listen to the IEBC on all matters election.
He said the commission has the duty and experience to do the work.
He defended the IEBC, saying they were vetted and found to be men of integrity who can deliver the task of managing the August 8 General Election.
The AG said it is regrettable that someone is telling the court to rule in their favour.
“Our duty is to come and argue, but not say if you don’t agree with us your judgment is illegitimate,” Prof Muigai said.
He was referring to a recent comment by NASA flagbearer Raila Odinga in relation to the case.
The AG warned the court to interpet the law as it is. “The Judiciary has no power to amend the Constitution to give effect to what is of public good. The entire case isn’t one of constitutional jurisprudence, but one to discuss political theory. Though it’s a good discussion, it only belongs to the hallway of academia. Avoid this temptation to pronounce yourself on political theory,” he said. The IEBC, in its submissions, asked the court to give the commission the final say.
Through lawyers Paul Nyamodi and Wambua Kilonzo, the electoral agency argued that granting the plea by opposition to have the presidential results announced by constituency returning officers means about 290 petitions might be filed in courts to challenge the polls.
Kilonzo noted a returning officer is not the returning officer for the Presidential election. “If the constituency returning officer will be the returning officer in the Presidential election, it will mean that there will be 290 returning officers, a situation which would create absurdity,” he said.
http://www.the-star.co.ke/news/2017/06/07/give-iebc-the-fi-nal-say-on-presidential-results-githu_c1575317 (http://www.the-star.co.ke/news/2017/06/07/give-iebc-the-fi-nal-say-on-presidential-results-githu_c1575317)
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Kilonzo noted a returning officer is not the returning officer for the Presidential election. “If the constituency returning officer will be the returning officer in the Presidential election, it will mean that there will be 290 returning officers, a situation which would create absurdity,” he said.
For some reason I thought the lawyer's argument was the absurdity. Since when (apart from 2013 Mutungaroo) did potential volume of lawsuits determine the legality of an issue?