Nipate
Forum => Kenya Discussion => Topic started by: RV Pundit on June 24, 2017, 11:57:55 AM
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Here is what Krigler recommened...
IREC recommends that ample time be allowed for verifying provisional
results, so that they are declared final/official only once there is no risk
that errors may still be found or non frivolous objections raised. Most
countries allow one to two weeks for this – there must be sufficient time
to check the provisional results, which are given status as final results
only when all objections have been considered, all checks and rechecks
conducted and the final verdict issued by the proper authorities. Given
a clear explanation of what a provisional result is, there is no problem
in making voters understand that election results are so important that
they can be declared final only once they have been properly scrutinized
and checked.
Here is what will happen.
-Rigging in stronghold (as always)
-Buying of ROs in battle-grounds.
End results election with credibility of an ODM nomination.
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Have you read the judgment yet?
Here is what Krigler recommened...
IREC recommends that ample time be allowed for verifying provisional
results, so that they are declared final/official only once there is no risk
that errors may still be found or non frivolous objections raised. Most
countries allow one to two weeks for this – there must be sufficient time
to check the provisional results, which are given status as final results
only when all objections have been considered, all checks and rechecks
conducted and the final verdict issued by the proper authorities. Given
a clear explanation of what a provisional result is, there is no problem
in making voters understand that election results are so important that
they can be declared final only once they have been properly scrutinized
and checked.
Here is what will happen.
-Rigging in stronghold (as always)
-Buying of ROs in battle-grounds.
End results election with credibility of an ODM nomination.
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Constitution of Kenya [Rev. 2010
Section 86. At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(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; and
d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.
138(2) If two or more candidates for President are nominated, an election shall be held in each constituency.
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The Elections Act, 2011.
39. Determination and declaration of results
(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.
(2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.
(3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.
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It's NOT well thought out judgement. Just finished reading it. IEBC knows best what works and what doesn't. Judges should restrain themselves interfering with internal IEBC regulations. IEBC have set out their operations - they understand the constraints (time, budget, etc)- and you cannot tell them to verify or trust 41,000 ROs that are temporary stuff hired a week or two to an election.
In effect these judges are asking for same rigorous process of vetting that Chebukati be done to every IEBC staff. Chebukati and IEBC commissioners are people of INTEGRITY - hired in rigorous process - and given constitutional powers to conduct election - anybody else in IEBC is not.
These judges are truly incorrigible....Chebukati has the same qualification as them...as chair he has same qualification of a judge.
It is as hypocritical as it is incongruous for the appellant to doubt the competency,
proficiency and honesty of its own staff as the reason for the need to “verify” the
results to ensure they are not tampered with. The appellant has the opportunity,
indeed a duty, to vet all its prospective employees to ensure they pass the
integrity test before engaging them. Members and employees of the appellant are
bound by a code of conduct. In any case apart from the offences related to
voting, or any other election-related offences committed by members or employees
of the appellant created under the Election Offences Act, section 30 of the
Independent Electoral and Boundaries Commission Act makes it an offence for a
member or employee of the appellant, to knowingly subvert the process of free
and fair elections.
Have you read the judgment yet?
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Section 86 - A - is the elephant - mean IEBC have the right to independently develop whatever voting method that is simple,accurate, verifiable, secure and accountable - and by enacting regulations to make sure whatever presiding officer or RO declare is accurate, verifiable and accountable - IEBC are doing their job- not usurping some power these judges have donated to Pos & Ros.
How can IEBC make sure their system is accurate, verifiable and accountable..without developing controls to make sure what POs, ROS, CROS and anybody else is accurate & verifiable. They just made our election an ODM like nomination - a free for all.
This judgement even assume electronic results will be transmitted. Constitution clears say the opposite. Electronic results are PROVISIONAL.
Constitution of Kenya [Rev. 2010
Section 86. At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(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; and
d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.
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This takes the cake for it's sheer stupidity. Constitution clears say any electronic results are provisional.
To suggest that there is some law that empowers the chairperson of the
appellant, as an individual to alone correct, vary, confirm, alter, modify or adjust
the results electronically transmitted to the national tallying centre from the
constituency tallying centres, is to donate an illegitimate power
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Lastly, the appellant submitted that the constituency returning officer is not mandated to declare the results of the presidential election; that the High Court assigned to him a role not contemplated by the Constitution; and that upholding the High Court judgment would mean that in a presidential election, there would be 290 returning officers, 290 declared results, and possibly 290 election petitions and 290 respondents, which would be impracticable and an absurdity.
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As regards the constituency returning officer, the appellant maintained that his role is to collate and publicly announce the results from each polling station in the constituency in a presidential election in line with Article 138 (2) and to deliver to its chairperson the collated results which he in turn tallies and verifies in line with Article 138(3) (c), before declaring the result in accordance with Article 138(10).
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Which article? Section? Subsection?
This takes the cake for it's sheer stupidity. Constitution clears say any electronic results are provisional.
To suggest that there is some law that empowers the chairperson of the
appellant, as an individual to alone correct, vary, confirm, alter, modify or adjust
the results electronically transmitted to the national tallying centre from the
constituency tallying centres, is to donate an illegitimate power
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If you believe that this ruling opens the rigging floodgates, then at least it will be televised. The real beef of the jubilant is not the rigging. But rather that it is difficult to hide it in the heat of the moment, where the results announced are no longer subject to correction on a spreadsheet in a small room.
You have to believe that ROs who have a track record of declaring election outcomes for MP and the works will suddenly be unable to handle an extra column for President. Something they already currently do. The media's role has just been expanded in this election.
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Opposing the appeal, the 1st, 2nd and 3rd respondents, who were represented by Mr. Otieno, Prof. Sihanya and Mr. Oginga, learned counsel, submitted that in interpreting the Constitution, the courts must pay due regard to its values and adopt an interpretation that is both substantive and purposive, while bearing in mind the mischief that the Constitution sought to cure.......
Making out their case why the chairperson of the appellant has no mandate to alter the announced results, the three respondents argued that the election materials containing the returns of the elections are retained at the constituency level and none is delivered to the appellant’s headquarters so as to form the basis of comparison and confirmation of the results announced by the constituency returning officer. In the view of these respondents, to the extent that counting and tabulation of the votes takes place at the polling station, confirmation of the results can only take place at that level because no recount or re-tallying can take place at the national level in the absence of the necessary election materials. To purport to recount and verify all votes cast in all polling stations at the appellant’s national tallying centre would, in the view of the three respondents, be impractical, slow and in utter violation of Article 86, which obliges the appellant to ensure that whatever voting method is adopted is simple, accurate, verifiable, secure, accountable and transparent and also in violation of the constitutional value and principle of prompt announcement of results.
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I don't see any fire. What this ruling introduces is more transparency in the elections where the media will tally the results and call the winner before IEBC - ala US. It narrows the window for rigging. This case is a matter of trust, not logistics.
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How are section 39(2) of the Act and regulations 83(2) and 87(2)(c) said to be inconsistent with the foregoing provisions and principles? Section 39(2) and (3) state that;
“(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.
(2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.
(3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.” (Emphasis supplied)
We also reproduce here below regulations 83(2) and 87(2)(c):
“83(2) The results of the presidential election in a constituency shown in Form 34 shall be subject to confirmation by the
Commission after a tally of all the votes cast in the election
…….
87(2) The returning officer shall after tallying of votes at the constituency level—
(a) announce the results cast (sic) for all candidates;
(b) issue certificates to persons elected in the National Assembly and county assembly elections in Form 38 set out in the Schedule; and
(c) electronically transmit the provisional results to the Commission”. (Emphasis supplied)
The 1st, 2nd and 3rd respondents were concerned that whereas Articles 86 and 138 make no reference or mention of the results from the constituency being provisional or subject to any confirmation, the terms of the impugned provisions suggest that those results can be interfered with at the national tallying centre by the chairperson of the appellant, who it designates the returning officer for the presidential election, yet the results announced at the constituency tallying centre are final.
Giving his views before the Kiraitu/Orengo Committee, the then chairperson of the appellant, Ahmed Issack Hassan explained the mischief and reason why those results were considered provisional and subject to confirmation. He is recorded in the report as having said the following;
“485. The chairperson further submitted that the results received under the system were provisional results under the Elections Act and the Election (General) Regulations because every returning officer had to bring the physical form to the county returning officer,
‘...So, they do not replace the official legal announcement of the results by the Returning Officer and the paperwork on forms 36, 37 and 38. These are forms in the Elections Act, they are prescribed and form part of the laws.’
486. With regard to the current transmission and declaration of results, the chairperson of the Independent Electoral and Boundaries Commission stated that-
‘... a presiding officer is the first point of call for results. He opens the ballot box, counts the ballot papers first for President and declares the results there’.” (Emphasis supplied)
The then chairperson further gave a road map of how the results of the 2013 elections were transmitted from the constituency to the county tallying centres and finally to the national tallying centre; that at the constituency tallying centre the final results of Member of Parliament (MP) for the constituency and also the Member of County Assembly (MCA) were “declared”.
However, the results of each presidential, gubernatorial, senatorial and woman representative candidates in that constituency were only “announced” for the reason that they were provisional and subject to confirmation. Thereafter, the results for the Governor, Senator, Woman Representative and President were taken by the constituency returning officer to the county returning officer who “declared” the winners for the seats of Governor, Senator, and Woman Representative but only “announced” the presidential results as received in the county before being brought to Nairobi. He concluded his presentation saying;
“Ultimately, all the 290 Returning Officers from each constituency came to Nairobi with the presidential results which they had announced at their constituency. The 47 County Returning Officers also brought their results from each county. These results were published online on the Commission’s website. Even as the Commissioners were reading the results as given to them by the officers, the officers were seated in the auditorium”.
Being of the view that the procedure enumerated above was not only cumbersome but also susceptible to serious risks of manipulation the Committee recommended;
“489. ….that the Elections Act be amended to provide for the electronic transmission of the tabulated results of an election for the President from a polling station to the constituency centres and to the national tallying centre”. (Emphasis supplied)
Following that and other recommendation, the Act was extensively amended by the Election Laws (Amendment) Act No. 36 of 13th September, 2016. For our purposes, to section 39 was introduced subsection (1C) to specifically provide for the transmission of presidential results. It reads;
“39(1C) For purposes of a presidential election the Commission shall —
(a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the
constituency tallying centre and to the national tallying centre
(b) tally and verify the results received at the national tallying centre; and
(c) publish the polling result forms on an online public portal maintained by the Commission”.
Pursuant to the constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability under the present legal regime, in the presidential election, the votes cast at each polling centre shall be counted, tabulated and the outcome of that tabulation announced without delay by the presiding officer. The results announced at each polling station shall be transmitted to the constituency returning officer, who in turn will openly and accurately collate the results from the various polling stations in the constituency and then promptly announce the outcome of the collation. From the constituency tallying centre, the returning officer will electronically transmit the results directly to the national tallying centre.
The dispute is on what should happen at the national tallying centre. While the appellant and the 4th respondent insist that, by the provisions of the Constitution, the Act and the Regulations, the appellant is authorised to “verify the results” and or “confirm” them, the 1st, 2nd and 3rd as well as the 5th and 6th respondents for their part have maintained that the results declared or announced at the polling stations are final and no person or entity can purport to have power to verify, confirm or vary them.
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From our own reading of all the provisions under review, the authorities relied on, and bearing in mind the history that we have set out in detail in this judgment, we are convinced that the amendments to the Act were intended to cure the mischief identified by the then former Chairperson of the appellant, and other stakeholders.
That mischief was, the spectacle of all the 290 returning officers from each constituency and 47 county returning officers trooping to Nairobi by whatever means of transport, carrying in hard copy the presidential results which they had announced at their respective constituency tallying centres. The other fear was that some returning officer would in the process tamper with the announced results.
One of the factors in the electoral system reforms that was underscored in the 2016 and 2017 amendments to the Elections Act, was the use of information technology to guarantee the accuracy and integrity of the results of elections. Section 44 was introduced in the 2016 amendment to provide, inter alia, that the appellant shall;
“44. (1) …establish an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
… (3) ...ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
(5) …in consultation with relevant agencies, institutions and stakeholders, including political parties, make regulations for the implementation of this section...” (Emphasis supplied)
In 2017 section 44A was inserted after section 44 to provide that;
“44A. Notwithstanding the provisions of section 39 and section 44, the Commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution”. (Emphasis supplied)
Pursuant to section 44(5) aforesaid the Elections (Technology) Regulations, 2017 were promulgated to provide for, among other things, information security, data availability, accuracy, integrity, confidentiality, and retention of the voting materials for three years following the elections.
They also provide for the establishment of the Elections Technology Advisory Committee composed of members and staff of the appellant, Registrar of Political Parties, representatives of majority and minority parties in Parliament, Political Parties Liaison Committee and Information Communication Technology professional bodies.
The mandate of the Committee includes, advising the appellant on adoption and implementation of election technology policies. It has the power to engage experts or consultants
We are satisfied that with this elaborate system, the electronic transmission of the already tabulated results from the polling stations, contained in the prescribed forms, is a critical way of safeguarding the accuracy of the outcome of elections, and do not see how the appellant or any of its officers can vary or even purport to verify those results, particularly when it is clear that, by Article 86 (d), section 2 of the Act and regulation 93(1), all election materials, including ballot boxes, ballot papers, counterfoils, information technology equipment for voting, seals and other materials, are to be retained in safe custody by the returning officers for a period of three years after the results of the elections have been declared, unless required in proceedings in court.
Under section 13 of the Election Offences Act, it is a criminal offence punishable, on conviction, by a fine not exceeding Kshs 500,000 or to imprisonment for a term not exceeding 5 years or both, to interfere with election material by destroying, concealing or mutilating it. In Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 Others ([2014] eKLR), this Court stressed the importance of safekeeping of the counterfoils of ballot papers.
The information contained in Form 34, which has since been replaced following the promulgation of the Elections (General) (Amendment) Regulations, 2017, is primary information that is itself arrived at after an elaborate process at two levels of the electoral system to safeguard the integrity of the outcome before it is transmitted to the national tallying centre.
Regulations 73 to 90 enumerate the process of counting of votes, declaration and transmission of results.
Once the presiding officer closes the polling station at the end of voting, he is required, in the presence of the candidates or agents to open each ballot box and empty its contents onto the counting table or any other facility provided for the purpose; cause to be counted, the votes received by each candidate by announcing the name of the candidate in whose favour the vote was cast; display to the candidates or agents and observers the ballot paper sufficiently for them to ascertain the vote; and put the ballot paper at the place on the counting table, or other facility provided for this purpose, designated for the candidate in whose favor it was cast. The total number of votes cast in favour of each candidate is then recorded in a tallying sheet in Form 33.
At this stage any candidate or agent may dispute the inclusion in the count, of a ballot paper; or object to the rejection of a ballot paper. During the exercise, all the ballot papers that do not bear the security features determined by the appellant; or which are marked against the names of more than one candidate; or on which anything is written or so marked as to be uncertain for whom the vote has been cast, will be marked with the word “rejected” and not counted. If an objection is raised to the rejection, the presiding officer shall add the words “rejection objected to”.
The presiding officer will eventually take stock of the number of ballot papers issued to him by the appellant before the commencement of the voting, the number of ballot papers issued to voters; the number of spoilt ballot papers; and the number of ballot papers remaining unused. In the presence of the candidates or their agents the presiding officer must seal, in separate tamper-proof envelopes the spoilt ballot papers, if any, the marked copy register and the counterfoils of the used ballot papers. The candidates or their agents, who may wish to do so, are permitted to affix their seals to the envelope. Thereafter the presiding officer shall, as soon as practicable, deliver the ballot boxes, and the tamper-proof sealed envelopes to the returning officer who shall take full charge of them for safe custody from that stage on.
Authorised agents of a political party or a candidate are permitted to attend at the venue of vote counting within the polling station. A person nominated as a deputy to the candidate, where applicable, police officers on duty, observers and representatives of the media, duly approved or accredited by the appellant may also be present during vote counting.
The presiding officer, the candidates or agents are required to sign the declaration in respect of the presidential elections in Form 34. Each political party, candidate, or their agent are supplied with a copy of the declaration before the results are communicated to the returning officer. Any candidate or agent, if present when the counting is completed, may require the presiding officer to have the votes rechecked and recounted or the presiding officer may on his or her own initiative, have the votes recounted, at most twice.
Until the candidates and agents present at the completion of the counting have been given a reasonable opportunity to exercise the right for a recount no steps can be taken on the completion of a count or recount of votes. A copy of the results is affixed at the entrance to the polling station.
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We bear in mind that presidential election, where two or more candidates are nominated, are held in each constituency and the foregoing process is undertaken at the constituency, the details of which are recorded at the end of the exercise in Form 34.
It is inconceivable that those details, arrived at after such an elaborate process can be viewed as provisional, temporary or interim. The inescapable conclusion is that it is final and can only be disturbed by the election court.
It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters’ will. The counting of the votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion.
It sounds ill that a contrary argument that is so anathema and antithetical to integrity and accuracy should fall from the appellant’s mouth.
By Article 86, the appellant is enjoined to ensure that—
“…..
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer.”
It is, in our view fallacious and flies in the face of the clear principles and values of the Constitution to claim that the chairperson of the appellant can alone, at the national tallying centre or wherever, purport to confirm, vary or verify the results arrived at through an open, transparent and participatory process as we have already set out.
Article 138(3)(c) buttresses this argument. It stipulates that;
“(3) In a presidential election—
……….
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”
Our interpretation of this Article is that the appellant, which is represented at all the polling stations, constituency and county tallying centres can only declare the result of the presidential vote at the constituency tallying centre after the process we have alluded to is complete, that is, after tallying and verification. It is equally instructive that regulation 83(3) recognises the finality of the results declared at the constituency. It states that;
“83(3) The decisions of the returning officer on the validity or otherwise of a ballot paper or a vote under this regulation shall be final except in an election petition”.
Considerable heavy weather was made of the distinction between “announced” as used in Article 86 and “declare” in Article 138, the argument for the appellant and the 4th respondent being that it is only the chairperson of the appellant that can “declare” the result of the presidential election, while the presiding and returning officers can only “announce” the results.
While we note that the two words are not used as terms of art, and that they have indeed been used loosely in the Regulations, we find guidance and are bound to adopt the reasoning of the Supreme Court in Hassan Ali Joho & Another v. Suleiman Said Shabhal & 2 Others (supra).
Though the case involved a dispute regarding election of governor, the Supreme Court explained the two words and the law as follows;
“68] Since the Constitution and the Elections Act do not define what amounts to a declaration of election results, the meaning of the term ‘declaration’ in our opinion can only be inferred from the various contexts in which it has been used in the Constitution, the Elections Act and the Regulations to the Elections Act.
……The word “declared” in the above Article has been used to depict the finality culminating in the declaration of the winner of an election.
72] “Declaration” takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County tallying centre. Thus the declaration of election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration is depicted in the issuance of the certificate in Form 38 to the winner of the election. This marks the end of the electoral process by affirming and declaring the election results, which could not be altered or disturbed by any authority,
.……..
84] With due respect to the Court of Appeal, the honourable judges did not evaluate and consider all the relevant provisions of the Constitution, the Elections Act and Regulations thereunder. The holding by the Court of Appeal that the returning officers are only authorized to announce the election results, and that the declaration the presiding officers are required to make relates only to the accuracy of the ballot and not to the winner of the election, with respect, is incorrect and incomplete. Further, the holding that the declaration in Form 35 and 36 is merely a return of or written record of the provisional election results, and not a declaration of election results, in our view, arises from an inadequate consideration of all the relevant provisions of the law, as well as the nature of the electoral process. This Court has considered all the provisions of the law aforesaid, in the earlier part of this judgment, and, without hesitancy has come to the conclusion that the final declaration of election results is by the issuance of the certificate in Form 38 to the winner of the election. This certificate is issued by the returning officer.
However, we note with appreciation that Justice Fred Ochieng, in Suleiman Said Shahbal v. The Independent Electoral and Boundaries Commission & 3 Others, Election Petition No. 8 of 2013, rightly held as follows:
‘If a declaration must be in a formal instrument, I find that the forms containing the results of the elections at every level constitute such formal instruments. When the forms 34, 35, 36, 37 or 38 have been duly signed by the authorized returning officer, [they become] instruments which cannot be challenged save through election petition’.
91] We are in agreement with the learned Judge, in his interpretation of the collective and interlocking provisions of the law relating to the entire electoral process”. (Our emphasis).
We fully adopt that statement, suffice only to reiterate that since, by dint of Article 138(2), if two or more candidates for presidential election are nominated, then an election must be held in each constituency whereat the returning officers play the most critical role in the overall result of a presidential election.
It cannot be denied that the Chairperson of the appellant has a significant constitutional role under Sub-Article (10) of Article 138 as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process.
Of course before he makes that declaration his role is to accurately tally all the results exactly as received from the 290 returning officers country-wide, without adding, subtracting, multiplying or dividing any number contained in the two forms from the constituency tallying centre.
If any verification or confirmation is anticipated, it has to relate only to confirmation and verification that the candidate to be declared elected president has met the threshold set under Article 138(4), by receiving more than half of all the votes cast in that election; and at least twenty- five per cent of the votes cast in each of more than half of the counties.
The only other verification or confirmation that we can envisage and is in fact conceded by the appellant itself in paragraphs 53-57 of the submissions relate to accountability of the ballot.
For instance, the number of ballot papers issued out to the constituencies, the number of ballot papers issued to and correctly used by voters, the number of spoilt ballot papers and the number of ballot papers remaining unused, which process is verified against Form 34.
Any changes to what was counted, confirmed and verified at the constituency level before transmission is manifestly outside his powers and competence. It could well be tantamount to a serious assault on the will of the people of Kenya and an impermissible breach of the Constitution.
Although the Act was amended, section 39 (2) and (3) were not changed, with the result that the appellant is empowered announce the provisional results of an election before determining and declaring the final results. Our reading of the amendments leaves us in no doubt that the retention of section 39 (2) and (3) serves only to sow mischief and confusion after it is stipulated quite clearly in the new section (1D) that:
“(1D) The chairperson of the Commission shall declare the results of the election of the President in accordance with Article 138(10) of the Constitution”,
it was unnecessary to retain the impugned provisions. As a matter of fact the entire amendment to section 39 was intended to align it with Articles 81, 82, 86, 101, 136 and 138 to provide for procedure at the general elections, especially the role of the appellant to conduct the elections, determine, declare and publish the results. By dint of section 39(1) of the Act, the appellant is required to declare and publish the results immediately after close of polling.
To facilitate the conduct of elections, the appellant is required to appoint returning officers at the constituency and county levels, whose roles are specified as follows;
“(1A) The Commission shall appoint constituency returning officers to be responsible for—
(i) tallying, announcement and declaration, in the prescribed form, of the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;
(ii) collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly; and
(iii) submitting, in the prescribed form, the collated results for the election of the President to the national tallying centre and the collated results for the election of the county Governor, Senator and county women representative to the National Assembly to the respective county returning officer.
(1B)……….county returning officers……
(1C)For purposes of a presidential election the Commission shall —
(a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;
(b) tally and verify the results received at the national tallying centre; and
(c) publish the polling result forms on an online public portal maintained by the Commission.
(1D) The chairperson of the Commission shall declare the results of the election of the President in accordance with Article 138(10) of the Constitution”. (Emphasis supplied)
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The interpretation of the law is left to the judiciary and they have the final say on what the law is. Pundit's interpretation or my interpretation of the law can makes for an interesting conversation or debate but ultimately the law is what the courts say it is. Unless the supreme court takes up this matter and makes a different ruling, this is what the law is as of now.
Pundit's other assertion is that this ruling will open the flood gates for rigging is an allegation that can be said about just any new law.
I remember those who argued that multi-party will divide Kenya further among tribal lines. There are those who argued that devolution will increase tribalism and corruption. There are those who argue that distribution of condoms and other contraceptives will increase promiscuity. There are those who argued in the US that increasing speed limits to 75 MPH will create a mayhem on the roads. The NRA in the US has argued successfully that banning the sale of assault weapons is a slippery slope to banning all guns.
Those who disagree with a new law always make alarming statements like this. It does not mean they are wrong all the time and should be ignored, however, if they are right, then the matter can always be revisited and that is why the constitution is a living document.
Pundits does not explain why the new interpretation of the law makes it easier for the RO's to be bribed or for the RO's to accept bribes than the earlier law. RO's will still be held to the same standards and to the same legal responsibilities as before. It can even be argued that RO's now are less inclined to accept bribes because of the new spot light placed on them. Lets remember that RO's at the constituency level will also be announcing the results of the other candidates such as CMC, MP's and Governor's and therefore all their numbers will have to make some mathematical sense.
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If GOK can pay and intimidate 290 ROs, I bet they can, and much more effectively, the one RO in Bomas called IEBC chair. If things are so bad huko chini, we might as well have eyes opened rather than hire big bro Chebukati to put makeup on it. After all he is just one man. He cannot possibly make sure all polling stations and RO tallying centres do their job, neither can he do that job himself. So if it's that bad, let us all know that it is that bad and find another method of choosing a government, maybe a magic octopus or tea leaves or have candidates face off in rock paper sciscors. But at least let us all know that that's what we are doing and not pretend we have elections.
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I think it was even easier for the GOK to pay or intimidate the 290 RO's before the new law. NOW the RO's are under a bright light. The ward, the MP, Governor and presidential candidates will be watching them very closely and they will not be able to pass the buck or disappear as they used to. They will have to get up in front of cameras, tapes and smart phones and announce the results. The numbers better make sense or hell will break loose. The Job of the RO has just been made harder and the only way to do this job is to be completely honest and transparent otherwise its going to be the fastest way for a corrupt individual to go to jail. The court looked at this matter and was satisfied of the checks and balances at the constituency level. Its going to be very difficult to cook numbers so that the ward, mp, and governors results are accurate and then somehow make up presidential numbers as pundit is alleging. Stealing presidential votes requires a lot of coordination and centralization. The devolution of tallying will make it very difficult for those who top-off numbers the ability to figure out how much votes they need to get over 50% and prevent a run-off as was done in 2013. This ruling may go down as the savior of this country from perennial PEV.
If GOK can pay and intimidate 290 ROs, I bet they can, and much more effectively, the one RO in Bomas called IEBC chair. If things are so bad huko chini, we might as well have eyes opened rather than hire big bro Chebukati to put makeup on it. After all he is just one man. He cannot possibly make sure all polling stations and RO tallying centres do their job, neither can he do that job himself. So if it's that bad, let us all know that it is that bad and find another method of choosing a government, maybe a magic octopus or tea leaves or have candidates face off in rock paper sciscors. But at least let us all know that that's what we are doing and not pretend we have elections.
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The way I see - this judgement can only be due to either sheer ignorance of the reality of how corrupt our voting process is - or both parties colluding to emasculate IEBC by each swaying judges- NASA naively think they are securing their votes but I think biggest winner is the incumbent - they have the financial & security muscle to roll over ROS.
Many ROs have had their election annualled - you can count how many by-election we normally have for evidence - and the extra scrutiny that national tallying center provide has been the reason why CORD presidential election - because IEBC verify & re-verify ROS work before making final declaration.
I rather put my trust on IEBC commissioners - who have been vetted - than faceless ROS.
This is what will happen - parties will bribe or intimidate ROS to declare the results they want - there is no scrutiny in every polling station - I am not sure who is planning to go scrutinize polling station in Mandera or Garissa or Turkana.
The amount of rigging will be so much it will be like 2007. The only option would be to re-do the election or form a caretaker gok.
My prayer is IEBC rushes to SCOK and have this stupid judgement declared stupid. In the meantime the fate of this country now lies with 290s folks.
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If the incumbent Is the winner then why are you complaining should you not be celebrating? Allow RO to do their job in a honest and transparent way and NASA will be ready to concede in a free and fair election. These are only 290 announcement for crying out loud. Let chebukati sit in Nairobi and contest any announcement that he disagree with after it has been publicly announced so can give valid reasons for making changes.
The way I see - this judgement can only be due to either sheer ignorance of the reality of how corrupt our voting process is - or both parties colluding to emasculate IEBC by each swaying judges- NASA naively think they are securing their votes but I think biggest winner is the incumbent - they have the financial & security muscle to roll over ROS.
Many ROs have had their election annualled - you can count how many by-election we normally have for evidence - and the extra scrutiny that national tallying center provide has been the reason why CORD presidential election - because IEBC verify & re-verify ROS work before making final declaration.
I rather put my trust on IEBC commissioners - who have been vetted - than faceless ROS.
This is what will happen - parties will bribe or intimidate ROS to declare the results they want - there is no scrutiny in every polling station - I am not sure who is planning to go scrutinize polling station in Mandera or Garissa or Turkana.
The amount of rigging will be so much it will be like 2007. The only option would be to re-do the election or form a caretaker gok.
My prayer is IEBC rushes to SCOK and have this stupid judgement declared stupid. In the meantime the fate of this country now lies with 290s folks.
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I am complaining because I am patriotic kenyan who want credible election done. As democracy our PORK need to enjoy legitimacy otherwise he is kaput. I don't want election so messed up like ODM nomination we will end in violence or we will have to go back & spend billions in another election.
Yes I want Uhuru to win - but I want him to win in fair and free election like in 2013. I don't want 2007 scenario. Nobody wants that.
I want IEBC strengthen to conduct free and fair election. I want BVR kit to work. I want provisional results to work. I want POS & ROs to know their work will be subjected to serious scrutiny.
If the incumbent Is the winner then why are you complaining should you not be celebrating? Allow RO to do their job in a honest and transparent way and NASA will be ready to concede in a free and fair election. These are only 290 announcement for crying out loud. Let chebukati sit in Nairobi and contest any announcement that he disagree with after it has been publicly announced so can give valid reasons for making changes.
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If GOK can pay and intimidate 290 ROs, I bet they can, and much more effectively, the one RO in Bomas called IEBC chair. If things are so bad huko chini, we might as well have eyes opened rather than hire big bro Chebukati to put makeup on it. After all he is just one man. He cannot possibly make sure all polling stations and RO tallying centres do their job, neither can he do that job himself. So if it's that bad, let us all know that it is that bad and find another method of choosing a government, maybe a magic octopus or tea leaves or have candidates face off in rock paper sciscors. But at least let us all know that that's what we are doing and not pretend we have elections.
Yep. If you are going to steal you are going to have to do it under the bright lights. The idea that they will become the new focus of bribes and intimidation is an admission, if inadvertent, that the man at national talllying center is usually the target of these vices.
They are saying "Instead of bribing and intimidating Chebukati, like we normally do, we will do it to the ROs". The sweet of irony of making this argument seems completely lost to the jubilant.
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RV Pundit. You can burst your veins over your biased analysis of the negative impact but this is the law now. Things like election results or court decision will not go your way all the time and you need to stop the temper tantrums. While you predict doom and gloom, I see it differently. The job of an RO just got more difficult and the court correctly dismissed the concerns that you now raise. The only tried and tested ways of reducing or eradicating the corruption is accountability, transparency, and aggressive prosecution, conviction and punishment of perpetrators. The spot light is on RO's. This is not just presidential elections but Ward, MP, Senate and Governor. I do not see how a corrupt RO in Raila or Ruto's stronghold will somehow produce the acceptable results for the other positions but somehow inflate or deflate the presidential results. But most importantly, RO's at the constituency level will not have the capacity to know how much votes to steal so that Ouru or Raila can win at the national level unless their is coordination from the top. I think you are being overly dramatic. That is a sign of panic attack.
The way I see - this judgement can only be due to either sheer ignorance of the reality of how corrupt our voting process is - or both parties colluding to emasculate IEBC by each swaying judges- NASA naively think they are securing their votes but I think biggest winner is the incumbent - they have the financial & security muscle to roll over ROS.
Many ROs have had their election annualled - you can count how many by-election we normally have for evidence - and the extra scrutiny that national tallying center provide has been the reason why CORD presidential election - because IEBC verify & re-verify ROS work before making final declaration.
I rather put my trust on IEBC commissioners - who have been vetted - than faceless ROS.
This is what will happen - parties will bribe or intimidate ROS to declare the results they want - there is no scrutiny in every polling station - I am not sure who is planning to go scrutinize polling station in Mandera or Garissa or Turkana.
The amount of rigging will be so much it will be like 2007. The only option would be to re-do the election or form a caretaker gok.
My prayer is IEBC rushes to SCOK and have this stupid judgement declared stupid. In the meantime the fate of this country now lies with 290s folks.
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Pundits does not explain why the new interpretation of the law makes it easier for the RO's to be bribed or for the RO's to accept bribes than the earlier law. RO's will still be held to the same standards and to the same legal responsibilities as before. It can even be argued that RO's now are less inclined to accept bribes because of the new spot light placed on them. Lets remember that RO's at the constituency level will also be announcing the results of the other candidates such as CMC, MP's and Governor's and therefore all their numbers will have to make some mathematical sense.
Each of the 290, will have to figure out in the spur of the moment how to get his portion of the 2 million extra President-Only votes, while making sure he does not step on MCAs, MPs, Senators, etc. The kind of feat that is a cakewalk with a centralized tallying point.
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Actually its going to be very difficult for the RO's to steal. They will have to be mathematical geniuses to somehow produce the correct results for the Wards, the MPs, the senators and the Governors and then somehow come up with crazy numbers for the presidential candidates. Its much easier for one RO to do that than to coordinate all the 290 RO's to produce a desired result. They used to announce the Ward, MP, Senate and the Governor results and then hold on to the presidents numbers so that they can figure out how much to "add" in order to "win". Now they have been denied that luxury because they have to make all the announcements at once without the benefit of what is going on in the other parts of the country. This ruling will make it very easy for either side to accept defeat absent any other glaring irregularity.
If GOK can pay and intimidate 290 ROs, I bet they can, and much more effectively, the one RO in Bomas called IEBC chair. If things are so bad huko chini, we might as well have eyes opened rather than hire big bro Chebukati to put makeup on it. After all he is just one man. He cannot possibly make sure all polling stations and RO tallying centres do their job, neither can he do that job himself. So if it's that bad, let us all know that it is that bad and find another method of choosing a government, maybe a magic octopus or tea leaves or have candidates face off in rock paper sciscors. But at least let us all know that that's what we are doing and not pretend we have elections.
Yep. If you are going to steal you are going to have to do it under the bright lights. The idea that they will become the new focus of bribes and intimidation is an admission, if inadvertent, that the man at national talllying center is usually the target of these vices.
They are saying "Instead of bribing and intimidating Chebukati, like we normally do, we will do it to the ROs". The sweet of irony of making this argument seems completely lost to the jubilant.
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Your naivety is the reason why Kalenjin will not make the same mistake of backing someone like Raila. This remind me (again) of 1992 election. I was a small boy then and FORD Jaramogi was really on top - and I told my late grandfather I thought he will win - he said even if he won - he'll be disposed by 2pm the same day.
Now all am hearing
1) We don't trust Chebukati - but we rather go with 290 un-vetted ROS.
2) Uhuru has to wait for figures to know how much to top up. It plain silly. Uhuru already knows the numbers he need to win.He knows where those numbers will come from.
Obviously stealing as usual will happen in strongholds - with your people of homabay as usual leading with turnout of 95% with some polling station posting 100%-- that will happen too in GEMA and possibly Kalenjin land. I don't see how that can be cured. And I have thought about it severally and there is really no good solutions. NASA agents in Kikuyu will be Jubilee folks and if they are not will be evicted from polling station. Most Raila votes in Kalenjin land will be declared spoilt or invalid for flimsy reasons. The same will happen in Luo Nyanza for Uhuru.
Election will be won in battle-ground. And those are ROS who will make the huge difference.
And as far as this issue goes..it's not final..unless IEBC are not appealing. So quit trying to shut the debate.
RV Pundit. You can burst your veins over your biased analysis of the negative impact but this is the law now. Things like election results or court decision will not go your way all the time and you need to stop the temper tantrums. While you predict doom and gloom, I see it differently. The job of an RO just got more difficult and the court correctly dismissed the concerns that you now raise. The only tried and tested ways of reducing or eradicating the corruption is accountability, transparency, and aggressive prosecution, conviction and punishment of perpetrators. The spot light is on RO's. This is not just presidential elections but Ward, MP, Senate and Governor. I do not see how a corrupt RO in Raila or Ruto's stronghold will somehow produce the acceptable results for the other positions but somehow inflate or deflate the presidential results. But most importantly, RO's at the constituency level will not have the capacity to know how much votes to steal so that Ouru or Raila can win at the national level unless their is coordination from the top. I think you are being overly dramatic. That is a sign of panic attack.
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Repeating a lie doesn't make it right. The difference in 2013 btw presidential, governor, etc - were about 10-50,000 thousands. The 2m is CORD lie. All six ballot papers will not tally up unless you're saying we have one big ballot paper.
Assuming the prov result works or their own internal tallying center - by mid-night - Uhuru or Raila will know what need topping up - and which RO to call to to top up - Chebukati will receive results 2 days later even under the current arrangement because the forms have to be delivered in person.
Each of the 290, will have to figure out in the spur of the moment how to get his portion of the 2 million extra President-Only votes, while making sure he does not step on MCAs, MPs, Senators, etc. The kind of feat that is a cakewalk with a centralized tallying point.
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I had not finished serializing the judgment but this caught my eye:
1. Name one instance when the NTC (National Tallying Centre) has intervened to correct an erroneous result in 2007 & 2013;
2. All the serious incidents in these elections have occurred at the NTC
The experience most of us have is that regimes and ruling parties used to rigging get nervous when votes start being counted at polling stations.
It was first done in 2002 and KANU lost power. Then Kibaki sabotaged it in 2007 with extraneous rules that required ROs to physically bring the results to Nairobi and he rigged. The system was abolished by the constitution for the 2013 elections but Isaack Hassan and others secretly connived to water it down. This is what the courts have corrected to restore status quo ante if you will.
There are some things you say down there Pundit that are very interesting:
Many ROs have had their election annulled - you can count how many by-election we normally have for evidence:Their illegal actions are detected and the courts order special elections? Perhaps that is what we need for Presidential elections
NASA naively think they are securing their votes but I think biggest winner is the incumbent - they have the financial & security muscle to roll over ROS. I think Energizer practically said the same thing. So let me get it right, deprived of quietly behind the scenes at Bomas, preparing forgeries and presenting them as legitimate result, Jubilee will now stage an armed robbery against 290 Returning Officers. In some cases it will bribe them to blatantly alter the results.
It sounds like someone would be eager to re-enact the 2007 Crisis. Of course Energizer said it will be be blamed on Raila and he will be sent to The Hague (Mutahi Ngunyi) and leave Ruto and Uhuru behind enjoying their second term.
The question is: What is different from 2007 and 2008 ? Kibaki planned it the same way. He even ratified the ICC treaty. However when the real evidence came in, it implicated Uhuru and others.
I rather put my trust on IEBC commissioners - who have been vetted - than faceless ROS.: Remember Kihara Muttu who assured Kivuitu all was well and he will run things as Kivuitu took his meds at home? How about Thomas Letangule?
I have never seen more corrupt people than IEBC commissioners! Right now we have one from NEP with 100 complaints against him from parties, aspirants, candidates etc from NEP. He is peddling influence and holding meetings alongside Abdikadir Hussein Mohammed
This is what will happen - parties will bribe or intimidate ROS to declare the results they want - there is no scrutiny in every polling station - I am not sure who is planning to go scrutinize polling station in Mandera or Garissa or Turkana. May be it is because the IEBC has been busy fighting wrong battles instead of putting in place mechanisms to ensure its staff deliver. ROs are part and parcel of the IEBC.
The amount of rigging will be so much it will be like 2007. The only option would be to re-do the election or form a caretaker gok:
I beg to disagree. The number of persons per polling station is reduced to 700 and would have been 500 had Jubilee not moved an amendment to increase it to 700. There is one register unlike 2007 and 2013 when nobody knew how many people were registered or how many registers existed.
My prayer is IEBC rushes to SCOK and have this stupid judgement declared stupid. In the meantime the fate of this country now lies with 290s folks:I wont be surprised if they go the the SCoK. Like I said Njoki Ndung'u is waiting. Here is the catch: If they do and that corrupt court rules as ordered or bribed to, it will destroy it permanently. NASA will still win but we shall insist on investigating 2013 deeper as pay back to the Judges
The way I see - this judgement can only be due to either sheer ignorance of the reality of how corrupt our voting process is - or both parties colluding to emasculate IEBC by each swaying judges- NASA naively think they are securing their votes but I think biggest winner is the incumbent - they have the financial & security muscle to roll over ROS.
Many ROs have had their election annualled - you can count how many by-election we normally have for evidence - and the extra scrutiny that national tallying center provide has been the reason why CORD presidential election - because IEBC verify & re-verify ROS work before making final declaration.
I rather put my trust on IEBC commissioners - who have been vetted - than faceless ROS.
This is what will happen - parties will bribe or intimidate ROS to declare the results they want - there is no scrutiny in every polling station - I am not sure who is planning to go scrutinize polling station in Mandera or Garissa or Turkana.
The amount of rigging will be so much it will be like 2007. The only option would be to re-do the election or form a caretaker gok.
My prayer is IEBC rushes to SCOK and have this stupid judgement declared stupid. In the meantime the fate of this country now lies with 290s folks.
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It took Isaack Hassan three years of fiddling with the results to eventually reduce it to a few hundred thousands.
Repeating a lie doesn't make it right. The difference in 2013 btw presidential, governor, etc - were about 10-50,000 thousands. The 2m is CORD lie. All six ballot papers will not tally up unless you're saying we have one big ballot paper.
Assuming the prov result works or their own internal tallying center - by mid-night - Uhuru or Raila will know what need topping up - and which RO to call to to top up - Chebukati will receive results 2 days later even under the current arrangement because the forms have to be delivered in person.
Each of the 290, will have to figure out in the spur of the moment how to get his portion of the 2 million extra President-Only votes, while making sure he does not step on MCAs, MPs, Senators, etc. The kind of feat that is a cakewalk with a centralized tallying point.
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We hold that, going by the flow and arrangement of foregoing provisions, from the constituency returning officers (at the constituency tallying centre), the county returning officers (at the county tallying centre) to the Chairperson of the appellant (at the national tallying centre), the intention of Parliament was to delineate roles at the three levels of election determination and declaration. This was in conformity with Article 138 of the Constitution. We reproduce it to illustrate this point.
“138. (1)...
(2) If two or more candidates for President are nominated, an election shall be held in each constituency.
(3) In a presidential election— (a) …
(b) the poll shall be taken by secret ballot on the day specified in Article 101 (1) at the time, in the places and in the manner prescribed under an Act of Parliament; and
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.
(4) A candidate shall be declared elected as President if the candidate receives—
(a) more than half of all the votes cast in the election; and (b) at least twenty- five per cent of the votes cast in each of more than half of the counties.
… (7) The candidate who receives the most votes in the fresh election shall be declared elected as President.
…
(10) Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall—
a) declare the result of the election; and (b) deliver a written notification of the result to the Chief Justice and the incumbent President”. (Emphasis supplied)
It is evident to us from the above sequence of events that the role of the Chairperson of the appellant is circumscribed. Article 138 deals with events at the polling stations where votes are counted, tallied, verified and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to be construed to mean the chairperson but rather, the returning officers who are mandated, after counting the votes in the polling stations, to tally and verify the count and declare the result. The appellant, as opposed to its chairperson, upon receipt of prescribed forms containing tabulated results for election of President electronically transmitted to it from the near 40,000 polling stations, is required to tally and “verify” the results received at the national tallying centre, without interfering with the figures and details of the outcome of the vote as received from the constituency tallying centre.
At the very tail end of this process, in Article 138(10) the chairperson then declares the result of the presidential election, and delivers a written notification of the result to the Chief Justice and to the incumbent President. That is how circumscribed and narrow the role of the chairperson of the appellant is.
Should a dispute arise from that election, though conducted in 290 constituencies, it would be farcical to suggest, as the appellant did, that that would require an aggrieved candidate to file 290 petitions. There is no more substance in that argument than there would be in a contention that petitions should be filed against all presiding officers in their thousands.
To conclude on the relationship between the appellant and its chairperson, the appellant is defined in section 2 of the Act as well as section 2 of the Independent Electoral and Boundaries Commission Act to mean;
“…the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution.”
The appellant is declared by Article 253 to be a body corporate with perpetual succession and a seal. It is independent and in the performance of its functions, it is not subject to the direction or control of any person or authority. The appellant consists, in law of the chairperson and six members, supported by a secretary. (See sections 5 and 10 of the Independent Electoral and Boundaries Commission Act).
The chairperson on the other hand is appointed under Article 250 of the Constitution.
The chairperson therefore cannot be, and is not, the appellant.
It is envisaged in Article 86 that for the purpose of conducting an election the appellant will be represented at the polling stations and constituency tallying centres by the presiding officers, and the returning officers, respectively, who as we have seen, are appointed by the appellant.
They are in every respect employees of the appellant and its agents in the eyes of the law. It is as hypocritical as it is incongruous for the appellant to doubt the competency, proficiency and honesty of its own staff as the reason for the need to “verify” the results to ensure they are not tampered with.
The appellant has the opportunity, indeed a duty, to vet all its prospective employees to ensure they pass the integrity test before engaging them.
Members and employees of the appellant are bound by a code of conduct. In any case apart from the offences related to voting, or any other election-related offences committed by members or employees of the appellant created under the Election Offences Act, section 30 of the Independent Electoral and Boundaries Commission Act makes it an offence for a member or employee of the appellant, to knowingly subvert the process of free and fair elections. A person who is convicted of an election-offence is not eligible to hold public office for a period of ten years following the conviction. As we have indicated, there are several mechanisms that the appellant can and must deploy to eradicate malfeasance on the part of its staff and officers.
We now turn our attention to amendments to the Regulations, which we alluded to earlier. It will be recalled that the High Court annulled Section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) on 7th April, 2017.
One would have expected the concerned institutions, including the appellant, to either comply with the determination of the court or if aggrieved, to challenge it in this Court as the appellant did within two weeks on 24th April 2017.
Instead, 14 days following the delivery of the judgment impugned in this appeal, the appellant issued a gazette supplement, being Legal Notice No. 72 of 21st April, 2017, making drastic amendments to the Elections (General) Regulations 2012, whose effect was clearly to render impotent and circumvent the declaration by the High Court of the inconsistency with the Constitution of section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c).
For instance, Form 34 which was headed “DECLARATION OF PRESIDENTIAL ELECTION RESULTS AT A POLLING STATION” has been replaced by two forms, Form 34A and 34B, the former now headed “PRESIDENTIAL ELECTION RESULTS AT THE POLLING STATION” and the latter “COLLATION OF PRESIDENTIAL ELECTION RESULTS AT THE CONSTITUENCY TALLYING CENTRE”.
Form 34C is the one to be used in place of Form 37 for the final declaration of the result of election of the President at the national tallying centre. The new regulation 87 specifies that upon receipt of Form 34A from the constituency returning officers the Chairperson of the appellant shall “verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre”.
The controversial regulations 83(2) and 87(2) were not affected by the amendments, and the object is not difficult to see. The High Court having found those regulations to be inconsistent with the Constitution, it was in bad faith for the appellant to re-enact them while pursuing this appeal.
It is our firm position that the purpose for which section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) were promulgated or made have the effect of infringing constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability.
To suggest that there is some law that empowers the chairperson of the appellant, as an individual to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power.
Such a suggestion would introduce opaqueness and arbitrariness to the electoral process - the very mischief the Constitution seeks to remedy.
We reiterate the words of the learned Judges of the Supreme Court in George Mike Wanjohi (supra) that;
“112. … Apart from the priority attaching to the political and constitutional scheme for the election of representatives of governance agencies, the weight of the people’s franchise - interest is far too substantial to permit one official, or a couple of them, including the returning officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State. It is manifest to this court that an error regarding the electors’ final choice, if indeed there is one, raises vital issues of justice such as can only be resolved before the courts of law.”
Accuracy of the count is fundamental in any election. Voter turnout determines the outcome of any electoral contest. Numbers are therefore not only unimpeachable, but they are everything in an election. The lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.
We reiterate, as we conclude that there is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the chairperson of the appellant. The responsibility of the appellant to deliver a credible and acceptable election in accordance with the Constitution is so grave and so awesome that it must approach and execute it with absolute fealty, probity and integrity.
The appellant must in all its dealings be truly above suspicion and command respect of the people of Kenya for whom it acts. Much depends on it, indeed the present and future peace of the country.
Ultimately we find no fault in the determination of the High Court that to the extent that section 39(2) and (3) of the Act and regulation 87(2)(c) provide that the results declared by the returning officer are provisional, and to the extent that regulation 83(2) provides that the results of the returning officer are subject to confirmation by the appellant, these provisions are inconsistent with the Constitution and therefore null and void.
There is no merit in this appeal, which we accordingly dismiss, with no orders as to costs due to its public interest nature.
Dated and delivered at Nairobi this 23rd day of June, 2017.
ASIKE-MAKHANDIA
………………..……….………….
JUDGE OF APPEAL
W. OUKO
……………………….…………..
JUDGE OF APPEAL
P. O. KIAGE
…………………..…..…………..
JUDGE OF APPEAL
K. M’INOTI
……………………….…………..
JUDGE OF APPEAL
A. K. MURGOR
……………………….…………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original
DEPUTY REGISTRAR
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I don't see the problem here. The ROs are not the final word, the SCOK is. If they announce a stupid result a retally and recount can be ordered and the court is free to accept those results as final or order another election in 60 days. The court is even free to maintain the announced results if it thinks there isnt a good enougg reason to question a particular result.
If that is all Chebukati was going to do anyway, what is the problem with having the SCOK do it in the glare of the public eye? We have had a presidential election petition before. We disagreed with its finding. We moved on. What is this fear of courts rather than Chebukati changing a result that was announced before all?
All this judgment has done is acknowledge that Chebukati is not a court. Once a result has been publicly tallied and announced in the presence of the public and all the parties, it is a very serious thing for someone to purport to change it in his office. That's really all the court is saying. Once the publicly tallied results are announced, they can only be tampered with in a similarly public and open process after good reasons have been similarly publicly given and debated and judged--again publicly--good enough to reopen the results announced before the public and all parties. That process is the court.
Chebukati cannot all by himself decide, for us all, to resolve the fact that there is corruption in elections by chosing the best outcome in his office. After an RO has done the criminal thing, his actions can be looked at and things determined.
And if things are really beyond repair, well then, let it be out in the public that it is beyond repair. Maybe then we can get an institution truly beyond the influence of anyone, like a UN or EU body, to do everything, including hiring all non-Kenyan staff at the polling station 8) and we only guarantee security. Or we just agree to play picky picky ponky between candidates. Both are better than hiring a commission to create a facade of credibility in a process that lacks that.
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That is exactly what will happen. SCOK will have to perform the job of National Tally Center because we have tied Chebukati hands. They will have to order re-counting and re-tallying because as of now Chebukati job basically ended when he hired those ROS.
However SCOK are not IEBC - so if they recourt & retally and discover errors - they cannot change the results. They cannot declare a new winner. Meaning the election will be annulled and we will go back for a fresh one. Loop that couple of times.
In short - errors or mistakes that could be DETECTED & RECTIFIED - by Chebukati - cannot be cured - so we keep repeating elections. These elections are damn expensive - and will hurt the economy.
You say you don't trust Chebukati/National tally - but explain to me why under the old system - SCOK cannot examine/audit any correction & verification Chebukati did - order re-counting & re-tallying -- of ballots & etc.
We had CORD petition - they ordered re-counting and re-tallying - Hassan had his tally center - they didn't find any cooking by Hassan. What exactly are we even trying to cure here? 2007 rigging - now we brand new IEBC & SCOK - we just need to trust them. This is not 2007 when Kibaki picked his own IEBC and SCOK.
In short we have emasculated IEBC. The extra layer of verification & rectification is gone. We definitely will have to re-do the elections. SCOK can verify all they want but they cannot change the results. Chebukati can verify and rectify saving us from mistakes that ROs will definitely make.
I don't see the problem here. The ROs are not the final word, the SCOK is. If they announce a stupid result a retally and recount can be ordered and the court is free to accept those results as final or order another election in 60 days. The court is even free to maintain the announced results if it thinks there isnt a good enougg reason to question a particular result.
If that is all Chebukati was going to do anyway, what is the problem with having the SCOK do it in the glare of the public eye? We have had a presidential election petition before. We disagreed with its finding. We moved on. What is this fear of courts rather than Chebukati changing a result that was announced before all?
All this judgment has done is acknowledge that Chebukati is not a court. Once a result has been publicly tallied and announced in the presence of the public and all the parties, it is a very serious thing for someone to purport to change it in his office. That's really all the court is saying. Once the publicly tallied results are announced, they can only be tampered with in a similarly public and open process after good reasons have been similarly publicly given and debated and judged--again publicly--good enough to reopen the results announced before the public and all parties. That process is the court.
Chebukati cannot all by himself decide, for us all, to resolve the fact that there is corruption in elections by chosing the best outcome in his office. After an RO has done the criminal thing, his actions can be looked at and things determined.
And if things are really beyond repair, well then, let it be out in the public that it is beyond repair. Maybe then we can get an institution truly beyond the influence of anyone, like a UN or EU body, to do everything, including hiring all non-Kenyan staff at the polling station 8) and we only guarantee security. Or we just agree to play picky picky ponky between candidates. Both are better than hiring a commission to create a facade of credibility in a process that lacks that.