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How Supreme Court influenced IEBC vote count in this year's poll

Supreme Court Judges Njoki Ndung'u, Smokin Wanjala, Philomena Mwilu, then-Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola. [Beverlyne Musili, Standard]

The Independent Electoral and Boundaries Commission (IEBC) has kept eager Kenyans on the edge as it tallies and collates the presidential votes cast countrywide.

However, the commission chaired by Wafula Chebukati is taking no chances to ensure that the General Election is free, fair, accurate and verifiable by painstakingly going through the results forms before publicly announcing them.

Although at least 99 per cent of presidential results forms had been uploaded on the IEBC website by yesterday evening, the commission called for patience as it verifies the data sent to them alongside physically delivered forms 34A and 34B.

It, however, asked Kenyans to tally the data from the forms on its portal but wait for the final announcement by the commission chairman.

Constitutional lawyer Bob Mkangi says although the Supreme Court is ready to deal with any disputes arising from the presidential election, some of the issues it addressed have so far been implemented.

According to him, so far, no issues have been raised on the paper trail, data management and transmission of results.

“So far, data management and transmission and handling of the entire paper trail and the forms have little in terms of dispute of how the forms have been processed,” says Mkangi.

“We will know the truth of the matter when the physical forms arrive at the national tallying centre. There is transparency, data access, and the media are able to broadcast the same. However, the tussle is around tallying at Bomas and we have to wait. Hopefully, we will not have any issues between the cast votes and what is published in the portal.

Constitutional lawyer Bob Mkangi. [Kipsang Joseph, Standard]

Lawyer Okweh Achiando says after the Supreme Court nullified the 2017 presidential election, the commission is cautious not to reveal the winner without all forms 34A being transmitted. He says the forms have to go through a rigorous verification process.

Manual process

Okweh says although IEBC is receiving data from the servers, it is verifying if the same is correct from forms 34A, which have to tally with forms 34B. He asserts that although the commission says the process is electronic, it is still manual as it involves verifying physical forms and not just the numbers sent to the national tallying centre.

“The Raila 2017 case has changed the landscape where form 34B is automatically printed whenever you key in your details and you cannot tamper with it. Voting is not biometric. In my view, it is manual because it is not where you vote and it is transmitted immediately. In countries such as India, you just put your finger and it transmits,” says Achiando.

According to him, knowing a winner would be faster in an electronic system.

The thrust of Raila’s 2017 case was that Chebukati announced the final presidential result without 11,000 forms 34A and that some of the forms submitted were forgeries. Raila said the transmitted numbers were cooked and did not reflect the votes cast.

He also complained that the election was not conducted in accordance with the Constitution and the Election Act, including having party agents sign result forms.

In his reply, President Uhuru Kenyatta said the commission followed the law and used forms 34B to announce the winner.

He argued that all party agents signed the forms and there was no proof to show they were forged.

On technology, Uhuru said it was just to aid manual voting and that claims of an algorithm to generate results were fiction.

In a landmark declaration that was delivered on September 1, 2017, four judges led by then-Chief Justice David Maraga and Deputy Chief Justice Philomena Mwilu, judges Smokin Wanjala and Isaac Lenaola annulled the presidential election due to IEBC’s failure to open the servers for verification.

Then-Chief Justice David Maraga. [Boniface Okendo, Standard]

According to the majority of judges, the 2017 election was not free, fair, accurate and verifiable.

Justices Njoki Ndung’u and Jackton Ojwang’ (now retired) gave dissenting verdicts.

Lawyer Shadrack Wambui says the commission learned a lesson that election is not about the numbers but the process. According to him, this is the reason for the cautious approach it has taken in ensuring that the tallying, transmission and final announcement contain right and verifiable numbers.

“The level of preparedness of IEBC is quite commendable and they appear to have picked some serious lessons on counting, tallying and relaying of the results. Remember what the Supreme Court told us; the quantity of the election is to be measured against the quality of the election. The judgment told us we must go beyond the numbers,” says Wambui.

He says the numbers being tallied by media houses and the forms that are on the IEBC’s portal ought to ensure accountability and transparency.

“The results you are seeing on KTN News, Citizen TV, NTV and online are not official but are ensuring transparency. The question of accountability is important and that is why they are being posted and you can easily find these results online,” says Wambui.