Form 34A or 34B, Which is Final?

[RV Pundit]

Who is IEBC. Court of Appeal said IEBC is not Chebukati. The POS is IEBC. The RO is IEBC. If the POS have verified - IEBC has verified. If the RO has verified - IEBC has verified. Now SCOK are saying Chebukati is IEBC and now need to verify results from IEBC Staff but cannot alter or vary them?

IEBC must verify every single result it receives at all stages, including NTC.

[vooke]

They are saying 34 As are not "irrelevant". They are not saying that 34 Bs thereby are. In other words, all of them matter. IEBC must verify every single result it receives at all stages, including NTC.

[Kadame7]

Who is IEBC. Court of Appeal said IEBC is not Chebukati. The POS is IEBC. The RO is IEBC. If the POS have verified - IEBC has verified. If the RO has verified - IEBC has verified. Now SCOK are saying Chebukati is IEBC and now need to verify results from IEBC Staff but cannot alter or vary them?

IEBC must verify every single result it receives at all stages, including NTC.

R.O. is IEBC, so is Chebukati. Why do you feel only one can act for IEBC?

[vooke]

[Kadame7]

They are saying 34 As are not "irrelevant". They are not saying that 34 Bs thereby are. In other words, all of them matter. IEBC must verify every single result it receives at all stages, including NTC.

Finally, IEBC needs guidance on how to reconcile discrepancies between these forms.

I think the problem you have with these decisions is that you assume the IEBC must be able to reconcile discrepancies between finalized 34As and Bs. You believe this is the point of the laws. The point Termi and I were making to you, and that the SCOK now says, is that there is another point to these laws: insurance. If you keep ignoring the function of discouraging alteration of forms at various stages, you will not be able to reconcile them. But as it stands, Chebukati and R.O. both have a duty to verify the forms they receive even if they can't alter then. They have a duty to make sure the forms are the same throughout. Once this is discovered, the Chair makes it very clear what discrepancies there are if any. If this is done and is public then the right rectification process can follow, even if it is the courts.

[RV Pundit]

Precisely. If I verify Form 34A and 34Bs and they can't reconcile. What does Chebukati do? Call the RO to vary or alter the results - although they have long been declared final.

[vooke]

They are saying 34 As are not "irrelevant". They are not saying that 34 Bs thereby are. In other words, all of them matter. IEBC must verify every single result it receives at all stages, including NTC.

Finally, IEBC needs guidance on how to reconcile discrepancies between these forms.

I think the problem you have with these decisions is that you assume the IEBC must be able to reconcile discrepancies between finalized 34As and Bs. You believe this is the point of the laws. The point Termi and I were making to you, and that the SCOK now says, is that there is another point to these laws: insurance. If you keep ignoring the function of discouraging alteration of forms at various stages, you will not be able to reconcile them. But as it stands, Chebukati and R.O. both have a duty to verify the forms they receive even if they can't alter then. They have a duty to make sure the forms are the same throughout. Once this is discovered, the Chair makes it very clear what discrepancies there are if any. If this is done and is public then the right rectification process can follow, even if it is the courts.

[vooke]

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.

[Kim Jong-Un's Pajama Pants]

Verification literally does not imply ability to change.  I think that is where you are having trouble.  In this case it simply allows the chairman to vouch for the result.  If it does not, he can state that fact, as Mwilu said. 

It's a bit like counting your change from a vending machine even if you wont do nothing about it.  Except the law requires him to know whether the declaration reflects the will of the peepoes(to paraphrase Ojwang).  It's an accountability device that can be used elsewhere.  It would be retrogressive to change it.

[RV Pundit]

SCOK 4 - Wakora 4 - are just amazing. I read that during the case. It plain political mischievous ruling. What purpose of verifying if you cannot cure it. That should be court job. They should verify 34 A and 34B - and if they find the difference so material - they can annual the election. Chebukati can only be allowed verify if he can override PO or RO. As of now the results are final - meaning Chebukati has NO option except to tally them up. If he verify and reject the results - does the law allows him to do that. PLAIN CRAZY. The law only allows him to verify and reject votes that EXCEED register votes.

You see we predicted after this MAINA kiai nonsense that election will be ANNULLED ad infinitum until this bad law is changed.

Njoki has nailed this - the stupid maina kia rulling need to be set aside.

[vooke]

Verification literally does not imply ability to change.  I think that is where you are having trouble.  In this case it simply allows the chairman to vouch for the result.  If it does not, he can state that fact, as Mwilu said. 

It's a bit like counting your change from a vending machine even if you wont do nothing about it.  Except the law requires him to know whether the declaration reflects the will of the peepoes(to paraphrase Ojwang).  It's an accountability device that can be used elsewhere.  It would be retrogressive to change it.

Moving on to the second ground, the appellant (IEBC) submitted that Article 138 (3) (c) requires it to verify the count before declaring the result of the presidential election and for that purpose its chairperson is required to tally and verify the count from all polling stations before declaring the result.

But the judges felt otherwise;

[Kim Jong-Un's Pajama Pants]

Verification literally does not imply ability to change.  I think that is where you are having trouble.  In this case it simply allows the chairman to vouch for the result.  If it does not, he can state that fact, as Mwilu said. 

It's a bit like counting your change from a vending machine even if you wont do nothing about it.  Except the law requires him to know whether the declaration reflects the will of the peepoes(to paraphrase Ojwang).  It's an accountability device that can be used elsewhere.  It would be retrogressive to change it.

Moving on to the second ground, the appellant (IEBC) submitted that Article 138 (3) (c) requires it to verify the count before declaring the result of the presidential election and for that purpose its chairperson is required to tally and verify the count from all polling stations before declaring the result.

But the judges felt otherwise;

I have read Kiai.  Thanks for asking.

[RV Pundit]

Seem Chebukati just has to go back to regulation he had after high court rulling on this Kiai case. The regulation that Court of Appeal found to be mischevious. Which now SCOK Wakora 4 are saying are needed. Poor Chebukati is getting tossed around like a ball as compromised judges try to square triangles.

[vooke]

I have read Kiai.  Thanks for asking.

[RV Pundit]

Of course he hasn't read - the guy only parrot NASA talking points. He need to start from Kiai 1 (high court). That IEBC appealed and argued for verification before Court of Appeal. Court of Appeal ENHANCED KIAI rules to deny Chebukati any verification. And now SCOK wakora 4 are saying Court of Appeal are wrong. Oops they are saying Chebukati was wrong to follow Court of Appeal rulling

[Kim Jong-Un's Pajama Pants]

I have read Kiai.  Thanks for asking.

He did not have all 34As.  The judgment did not prevent him from verifying 34As.  It pointed out that he cannot vary constituency RO results.  It did not take away the requirement to verify Forms 34A.

[RV Pundit]

To what end - what would be the output of the verification of source forms - if form 34B is final? So he can declare the president with a CAVEAT That you although you won I am aware after verification that some Form 34As have issues here and there?

He did not have all 34As.  The judgment did not prevent him from verifying 34As.  It pointed out that he cannot vary constituency RO results.  It did not take away the requirement to verify Forms 34A.

[vooke]

To what end - what would be the output of the verification of source forms - if form 34B is final? So he can declare the president with a CAVEAT That you although you won I am aware after verification that some Form 34As have issues here and there?

He did not have all 34As.  The judgment did not prevent him from verifying 34As.  It pointed out that he cannot vary constituency RO results.  It did not take away the requirement to verify Forms 34A.

Termie feels instead of a caveat IEBC should file a petition against the very results they have declared so they can vary them

[Kim Jong-Un's Pajama Pants]

To what end - what would be the output of the verification of source forms - if form 34B is final? So he can declare the president with a CAVEAT That you although you won I am aware after verification that some Form 34As have issues here and there?

He did not have all 34As.  The judgment did not prevent him from verifying 34As.  It pointed out that he cannot vary constituency RO results.  It did not take away the requirement to verify Forms 34A.

Yes.  That was exactly Philomena Mwilu's interpretation.  Or he can ignore it if it doesn't matter as far as outcome anyway.  He wouldn't get in trouble over missing a few 34As if the election is not close for instance.  He can still do his verification without them.

If he seriously disagrees with the result, his hands are tied.  That is because of our history.  With time, such restrictions may be lifted for clearly exceptional cases.  But you can only prove such cases by doing your verification in the first place.  If there are enough outrageous outcomes, laws can be changed to lift restrictions in some cases.

[vooke]

He did not have all 34As.  The judgment did not prevent him from verifying 34As.  It pointed out that he cannot vary constituency RO results.  It did not take away the requirement to verify Forms 34A.

Look at Election Regulation 87(3)(a)-(c)

https://roggkenya.org/wp-content/uploads/Kenya-Elections_General-Regulations-as-of2017.pdf

Chairperson is supposed to verify,right?

But enter Kiai case and though this was not subject they pointed out that the verification at NTC according to the NEW regulation was mischief