Form 34A or 34B, Which is Final?

[Kim Jong-Un's Pajama Pants]

vooke,

Scratch everything I said on this thread.  I just made some time to recheck the Kiai ruling against Mwilu's interpretation.  Boy was I wrong.  This Mwilu is a sharp cookie.  Everything I have been discussing on this thread is based on the premise 34A->34B->34C.  That is wrong.  Throw that out.

The actual legal expectation is 34A->34B and 34A->34C.  34As are ending up at both the CTC and NTC.  Each uses them to come up with their respective tally for the Presidential election.  So you have 1 NTC Presidential result(the one to be declared), and 290 CTC Presidential results. 

The chairman can use 34Bs for his own purposes, maybe to catch some errors that he can make note of, per Mwilu.  He can say Juja results showed 106% turnout to use a perfectly random example, but he cannot change it.  He doesn't need to because he is making his own separate tally from his copy of 34As.

Chebukati is therefore in fact expected to rely on 34A to generate the final 34C.  But he did not do this.  That level of oversight is inexcusable for an organization funded with millions bristling with attorneys of all stripes.  What's the excuse?  At least on nipate we can just say we didn't read it and we are not paid to do it.

Section 39(1C) of the Elections Act

[vooke]

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 retuning officer are subject to confirmation by the appellant, these provisions are inconsistent with the Constitution and therefore null and void.

[patel]

Thanks assassin for clarification.  Is it possible to verify and validated results without alteration?  Yes... so why are we assuming that the results would need alteration?
If ever body does their job with seriousness that it deserves then I don't see why/where errors should occur. Plus at every step there is more than 1 person verifying this numbers. 

vooke,

Scratch everything I said on this thread.  I just made some time to recheck the Kiai ruling against Mwilu's interpretation.  Boy was I wrong.  This Mwilu is a sharp cookie.  Everything I have been discussing on this thread is based on the premise 34A->34B->34C.  That is wrong.  Throw that out.

The actual legal expectation is 34A->34B and 34A->34C.  34As are ending up at both the CTC and NTC.  Each uses them to come up with their respective tally for the Presidential election.  So you have 1 NTC Presidential result(the one to be declared), and 290 CTC Presidential results. 

The chairman can use 34Bs for his own purposes, maybe to catch some errors that he can make note of, per Mwilu.  He can say Juja results showed 106% turnout to use a perfectly random example, but he cannot change it.  He doesn't need to because he is making his own separate tally from his copy of 34As.

Chebukati is therefore in fact expected to rely on 34A to generate the final 34C.  But he did not do this.  That level of oversight is inexcusable for an organization funded with millions bristling with attorneys of all stripes.  What's the excuse?  At least on nipate we can just say we didn't read it and we are not paid to do it.

Section 39(1C) of the Elections Act

[Kim Jong-Un's Pajama Pants]

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 retuning officer are subject to confirmation by the appellant, these provisions are inconsistent with the Constitution and therefore null and void.

Only part of section 39 was struck out.  (2) and (3).  (1) was left intact. 

The 290 results are supposed to be left alone unchanged.  But they are not binding on Chebukati.  In other words, his result is not necessarily expected to match them.

The record of the election thus includes 290 CTC results, and 1 NTC result that is declared from NTCs own copy of 34As.  When things are running smoothly there should be general agreement between the aggregate of these 290, and the NTC declaration.  Minor differences are permissible.

One might wonder what's the use?  Before, NTC could change anything at any level and we generally ended up with a clean result that agreed perfectly through all levels, all the time.  This hid potentially useful information be it for purposes of detecting mischief or just useful statistics.  Isaak Hassan took months just destroy this layer of info.

Chebukati, a lawyer among others, totally misunderstood the ruling.  In better times he would have been hanged, drawn and quartered.

[vooke]

(2) If two or more candidates for President are nominated, an election shall be held in each constituency.

[Kim Jong-Un's Pajama Pants]

(2) If two or more candidates for President are nominated, an election shall be held in each constituency.

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs.  If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

[vooke]

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs. If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

[Kim Jong-Un's Pajama Pants]

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs. If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

He has to verify 34B against 34A.  See Election Regulation 87(3)(a) (an image of which I just now realize you have included on this thread https://s26.postimg.org/70v8y377d/DC9_B0559-_A05_D-477_A-_B851-_EDEC252_B4948.jpg).

In order to do this, he must of necessity come up with his own tally from 34As.  What he decides to use after satisfying this requirement, is not clear.  What is clear is he did not have a substantial number of 34As up to several days after the declaration.

[vooke]

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs. If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

He has to verify 34B against 34A.  See Election Regulation 87(3)(a) (an image of which I just now realize you have included on this thread https://s26.postimg.org/70v8y377d/DC9_B0559-_A05_D-477_A-_B851-_EDEC252_B4948.jpg).

In order to do this, he must of necessity come up with his own tally from 34As.  What he decides to use after satisfying this requirement, is not clear.  What is clear is he did not have a substantial number of 34As up to several days after the declaration.

Kiai case held these regulations as mischief and meant to circumvent the very issue IEBC was appealing;finality of Constituency results. I quoted the relevant portion of the judgement.

[Kim Jong-Un's Pajama Pants]

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs. If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

He has to verify 34B against 34A.  See Election Regulation 87(3)(a) (an image of which I just now realize you have included on this thread https://s26.postimg.org/70v8y377d/DC9_B0559-_A05_D-477_A-_B851-_EDEC252_B4948.jpg).

In order to do this, he must of necessity come up with his own tally from 34As.  What he decides to use after satisfying this requirement, is not clear.  What is clear is he did not have a substantial number of 34As up to several days after the declaration.

Kiai case held these regulations as mischief and meant to circumvent the very issue IEBC was appealing;finality of Constituency results. I quoted the relevant portion of the judgement.

Regulations  83 (2), 84 (1) and 87 (2) were declared unconstitutional.  Regulation  87 (3) was not affected.

[vooke]

Yes.  But the constitution does not prescribe how the results are tallied.  Left without enabling legislation, it does not say where or how the tallying is to be done.  Those tallies could even be carried out at NTC or on the moon.

The statute(Election Act) prescribes the manner of how the results are tallied.  To me, it simply suggests he has a choice to go with his own 34A tally or the 34Bs. If the differences are minor, this doesn't matter.  But he must have both.  That is just from looking at the constitution and legislation.  I imagine the regulations should crystallize the issue further - but I don't know them.

What is clear is that he cannot change 34Bs.

He has to verify 34B against 34A.  See Election Regulation 87(3)(a) (an image of which I just now realize you have included on this thread https://s26.postimg.org/70v8y377d/DC9_B0559-_A05_D-477_A-_B851-_EDEC252_B4948.jpg).

In order to do this, he must of necessity come up with his own tally from 34As.  What he decides to use after satisfying this requirement, is not clear.  What is clear is he did not have a substantial number of 34As up to several days after the declaration.

Kiai case held these regulations as mischief and meant to circumvent the very issue IEBC was appealing;finality of Constituency results. I quoted the relevant portion of the judgement.

Regulations  83 (2), 84 (1) and 87 (2) were declared unconstitutional.  Regulation  87 (3) was not affected.

It was not affected because it was introduced after the high court decision,and it was not the subject of the Appeal.

That the Judges read mischief and circumvention of the High Court decision which they upheld is all you need to know it is defective.

verify

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.

[RV Pundit]

It's pretty obviously confusing situation by moronic judiciary that Parliament need to cure.

[vooke]

[Kim Jong-Un's Pajama Pants]

He has to verify 34B against 34A.  See Election Regulation 87(3)(a) (an image of which I just now realize you have included on this thread https://s26.postimg.org/70v8y377d/DC9_B0559-_A05_D-477_A-_B851-_EDEC252_B4948.jpg).

In order to do this, he must of necessity come up with his own tally from 34As.  What he decides to use after satisfying this requirement, is not clear.  What is clear is he did not have a substantial number of 34As up to several days after the declaration.

Kiai case held these regulations as mischief and meant to circumvent the very issue IEBC was appealing;finality of Constituency results. I quoted the relevant portion of the judgement.

Regulations  83 (2), 84 (1) and 87 (2) were declared unconstitutional.  Regulation  87 (3) was not affected.

It was not affected because it was introduced after the high court decision,and it was not the subject of the Appeal.

That the Judges read mischief and circumvention of the High Court decision which they upheld is all you need to know it is defective.

verify

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.

Ok.  I see what you mean.  Regulation 87 (3) is mischief.  So they should have reverted to the old regulations that were not declared unconstitutional.  The equivalent in the old regulations is regulation 87 (4) (a) and it was not declared unconstitutional.

Regulation 87 (4) (a)

If you read that with section 39(1C) (b) of the Elections Act, he must verify those results he gets from the CROs.  The only way he can do that is with the 34As at his disposal. 

In the last paragraph, he can determine if the remaining counties make no difference from the 34As at his disposal.

It looks like his final declaration should be on the basis of 34Bs.  There is no question he needs to verify with 34As though.

[Kim Jong-Un's Pajama Pants]

I prefer the parallel tallying at constituencies level and national level, with the national tally from 34As being final of course.  It incorporates an inbuilt mechanism for catching mischief at either level.

[vooke]

I prefer the parallel tallying at constituencies level and national level, with the national tally from 34As being final of course.  It incorporates an inbuilt mechanism for catching mischief at either level.

[vooke]

Ok.  I see what you mean.  Regulation 87 (3) is mischief.  So they should have reverted to the old regulations that were not declared unconstitutional.  The equivalent in the old regulations is regulation 87 (4) (a) and it was not declared unconstitutional.

must

If you read that with section 39(1C) (b) of the Elections Act, he must verify those results he gets from the CROs.  The only way he can do that is with the 34As at his disposal. 

In the last paragraph, he can determine if the remaining counties make no difference from the 34As at his disposal.

It looks like his final declaration should be on the basis of 34Bs.  There is no question he needs to verify with 34As though.

Kiai case says the only verification the chairperson does is of whether any candidate meets the constitutional threshold.

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.

This is what is meant by 39(1C)(b) and not arithmetical accuracy or anything else.

[vooke]

[Kim Jong-Un's Pajama Pants]

Ok.  I see what you mean.  Regulation 87 (3) is mischief.  So they should have reverted to the old regulations that were not declared unconstitutional.  The equivalent in the old regulations is regulation 87 (4) (a) and it was not declared unconstitutional.

Regulation 87 (4) (a) was was not one of those declared unconstitutional.  And it's part of the 2012 regulations.

If you read that with section 39(1C) (b) of the Elections Act, he must verify those results he gets from the CROs.  The only way he can do that is with the 34As at his disposal. 

In the last paragraph, he can determine if the remaining counties make no difference from the 34As at his disposal.

It looks like his final declaration should be on the basis of 34Bs.  There is no question he needs to verify with 34As though.

My bad.  39(1)(c) actually refers to the commission(IEBC), not specifically the chairman according to the Kiai case.  But they say he should receive CTC results and 34As.  Upon receiving both sets, he is then to tally and "verify".  I agree that verify in this case is not comparing 34B tallies with 34A tallies, as you point out below.

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.

Then,



Therefore the appellant(IEBC) is supposed to receive results at NTC from

(1) the CTCs and 
(2) all the polling stations(34As) and tally and "verify" them(but not 34A verification).

It looks like IEBC needs the transmitted 34As before declaration by the chairman.  There were thousands sill missing days after the declaration.  If you look at IEBC as one entity for this purpose, even if they are relying only on 34Bs, it still means these 34Bs were completed with thousands of 34As still unavailable.

Kiai case says the only verification the chairperson does is of whether any candidate meets the constitutional threshold.

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.

This is what is meant by 39(1C)(b) and not arithmetical accuracy or anything else.

[Kim Jong-Un's Pajama Pants]

He declared the election outcome with max 108 34Bs.  3 days after the declaration, August 14th, IEBC still had not released the remaining 182 34Bs.  Court records. 

Whatever else one may call it, a valid declaration is not one of those things.