Mutunga-led Bench unearths anomalies in vote tallying

By Isaiah Lucheli

Nairobi, Kenya: The Supreme Court acknowledged that there were several discrepancies in the March 4 General Election.

The highest court in the land observed after re-tallying of votes in 22 stations, it was found that five polling stations had discrepancies as to the number of votes cast and those reflected in Form 34 and Form 36.

In its ruling, the court also found out that Forms 34 were missing in some polling stations such as Zowerani Primary School in Kilifi North Constituency, Show Ground in Kapenguria Constituency, Nakatiyani Water Point in Loima Constituency and Mjanaheri Primary School in Magarini Constituency. In addition, the aggregate results of Form 36 from 75 constituencies were missing.

Among stations where discrepancies were recorded include Lomerimeri Primary School in Tiaty Constituency, Nthambiro Primary School in Igembe Central Constituency, Kabuito Primary School in Igembe Central Constituency and Mugumoini Primary School in Chuka.

The Supreme Court scrutinised Forms 34 used in the tallying of presidential election votes from 18,000 polling stations out of 33,400 polling stations in the country.

On March 25, the court ordered the scrutiny of all Forms 34 and Forms 36. The scrutiny was to better understand the vital details of the electoral process, and to gain impressions on the integrity thereof,” the ruling read in part.

Principal register

The court also ordered a re-tallying of the presidential votes in 22 polling stations using Forms 34, 36 and the principal register, as these stations had featured in the petitioner’s grievance.

The purpose of the re-tally was to establish whether the number of votes cast in these stations exceeded that of registered voters as indicated in the principal register.

While quoting several authorities from judgments across the world, the Supreme Court found merit with the judicial approach where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.

“All acts are presumed to have been done rightly and regularly. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies,” the judges concluded.

The petitioners had observed that the discrepancies during the tallying exercise had confirmed former Prime Minister’s Raila Odinga’s claims that the IEBC and its chairman Issack Hassan did not verify the presidential election results as required under the law, and should not have announced the results without accounting for all electoral areas.

“This is particularly so in light of missing Form 34s from ten polling stations that were highlighted in the report,” they had said.

Respondents, through their responses, had filed evidence in court answering each and every one of the discrepancies highlighted in the court’s report.