By Lucianne Limo

Nairobi, Kenya: The Supreme Court found out that rejected ballot papers are invalid and cannot be included while tallying results for candidates.

The highest court in the land ruled that the Independent Electoral and Boundaries Commission (IEBC) erred in including rejected ballot papers during the tallying of presidential votes in the March 4 election.

Article 138(4) of the Constitution provides that “a candidate shall be declared elected as president if he receives more than half of all the votes cast in the election and at least 25 per cent of votes cast in each of more than half of the counties.”

In reaching their decision, the judges had to ask what are “all the votes cast” and whether they include even the “rejected votes”, which, of course, were cast?

The court noted that neither the Constitution nor the regulations made by IEBC have provision for “rejected votes”, though they provide for “rejected ballot papers”, “spoilt ballot papers”, and “disputed votes”.

“It is clear that “spoilt ballot papers” are those that are not placed in the ballot box, but are cancelled and replaced where necessary by the presiding officer at the polling station,” they concluded.

Shortfalls

This, they added, differs from the “rejected ballot papers”, which although placed in the ballot-box, are subsequently declared invalid, on account of certain factors specified in the election regulations – such as fraud, duplicity of marking and related shortfalls.

In that regard, the six judges ruled that a valid vote is counted in favour of the intended candidate while rejected vote will not count in the tally of any candidate.

“It is not only rejected, but is invalid, and confers no electoral advantage upon any candidate. In that sense, the rejected vote is void,” they said in the 113-page judegment.

The petitioners, Moses Kiarie, Dennis Itumbi and Florence Sergon moved to court seeking interpretation on whether rejected votes should not be used in the formula for calculating the final tally. At the start of tallying, IEBC excluded rejected votes from votes cast.

The number of rejected votes hit over 300,000 on the second day but ODM demanded that the rejected votes be included in calculating the percentage of the votes cast.

IEBC chair Issack Hassan said they considered the dictionary meaning of the word ‘cast’ and concluded that excluding the rejected votes in the tally would amount to unreasonably restricting the right to vote.

Through his lawyer Fred Ngatia, President Uhuru Kenyatta claimed the purpose of pushing the commission to include rejected votes in tallying was to ensure he (Uhuru) did not get more than 50 per cent of the votes cast to force a run-off.

But IEBC denied the allegations that they acted following pressure from ODM and the British High Commissioner.