From Frying pan to the fire - Let the rigging race begin

[RV Pundit]

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[Omollo]

Have you read the judgment yet?

[Omollo]

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.

[Omollo]

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.

[RV Pundit]

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

Have you read the judgment yet?

[RV Pundit]

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.

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.

[RV Pundit]

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

[Omollo]

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.

[Omollo]

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).

[Omollo]

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

[Kim Jong-Un's Pajama Pants]

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.

[Omollo]

[Nefertiti]

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.

[Omollo]

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;
the Commission may announce the provisional results of an election.
(3) The Commission shall announce the provisional
We also reproduce here below regulations 83(2) and 87(2)(c):

the provisional results to the Commission

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.

Being of the view that the procedure enumerated above was not only cumbersome but also susceptible to serious risks of manipulation the Committee recommended;



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;



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 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.

[Omollo]

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;



In 2017 section 44A was inserted after section 44 to provide that;



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 and not counted. If an objection is raised to the rejection, the presiding officer shall add the words .

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.

[Omollo]

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.

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;


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;



Considerable heavy weather was made of the distinction between as used in Article 86 and in Article 138, the argument for the appellant and the 4th respondent being that it is only the chairperson of the appellant that can the result of the presidential election, while the presiding and returning officers can only 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). which could not be altered or disturbed by any authorityThe 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:





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:

[Kichwa]

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.   

[Kadame5]

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.

[Kichwa]

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.

[RV Pundit]

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.