People's coalition to appeal ruling on national tallying centre

Busia Senator Okiya Omtatah led the petition against the national tallying centre and verification of presidential results. [Benard Orwongo, Standard]

The People’s Coalition on Electoral Reforms has now said it will move to the Court of Appeal to challenge the ruling that upheld legality of the national tallying centre and verification of presidential results.

The coalition said on Wednesday that the outcome of the petition led by Busia Senator Okiya Omtatah versus Independent and Electoral Boundaries Commission (IEBC) marked an invaluable checkpoint in the country’s history.

Former Speaker Justin Muturi explained that the bigger issue is not necessarily about the national tallying centre but finality of what is announced and what exactly the commissioners do.

“The building could be Bomas or KICC or any other, but what is their power, what does verification mean? Does it mean they are going to reopen what has been declared final at the constituency level? That is an issue that we want the Court of Appeal to address,” Muturi told The Standard.

Muturi also said the High Court agrees that the results declared at the constituency and polling stations prevail in the event that there is a discrepancy between those physically and electronically transmitted.

“Although the judge says what is declared at the constituency and polling station is final... even when you read the judgment, he confuses himself. He says what results are final and the Court of Appeal had already said that two subsections 39 of the Elections Act are unconstitutional, how then can he come to differ again? It will be clarified at the Court of Appeal,” Muturi, separately explained.

Earlier, the coalition led by United Green Movement (UGM) party Secretary General Katto Wambua and Co-leader Agostinho Neto said the High Court judgment outlines the critical structural boundaries governing the country’s democracy.

They made the remarks as they affirmed to support a transparent electoral process by the IEBC and other Election institutions, but will be vigilant against institutional sabotage.

Despite the legal technicalities extracted from the ruling, Wambua said the political and constitutional reality remains unaltered that Kenya cannot endure another election where the sovereign will of the people is subverted inside an opaque centralized tallying centre.

The ghosts of the 2007/2008 post-election violence serve an eternal, institutional warning that we categorically refuse to relive...The petitioners’ effort and consequent judgment has laid bare the legal contradictions within the current Elections Act, which ouster the anticipated constitutional elections integrity administrative compliance,” Wambua explained.

The coalition insisted that their position to IEBC, to Parliament, and to the Executive is unmistakably clear that an election is won or lost at the polling station, which was affirmed by Tuesday’s judgment.

They say it was also affirmed in the landmark jurisprudence of IEBC v Maina Kiai (2017).

The coalition maintained that any statutory provision or administrative maneuver that seeks to maintain a centralized clearinghouse under the guise of a 'national tallying centre' to alter, delay, or re-verify results already publicly declared at the 290 constituencies and the diaspora electoral units is illegal and void to that extent.

They cited Articles 83, 86, and 138 of the Constitution, saying they explicitly restrict IEBC Chairperson to a singular role of declaring results, already verified, tallied and declared in the 290 constituency tallying centres and diaspora, not to "tally and verify the results received at the national tallying centre" as purported by Elections (General) Regulation, 83 (3).

The People's Coalition said it has already finalized extensive, statutory amendments to the Elections Act and the Elections (General) regulations.

The amendments have been formally submitted to the Suba South MP, Caroli Omondi to table in Parliament.

They said their Elections Amendment Bill will undo the ambiguous statutory language that IEBC has historically exploited to host the National Tallying Centre.

They also said that they will submit the said amendments to the Justice and Legal Affairs Committee (JLAC) of the National Assembly during the public participation process of the current Elections Amendment Bills before Parliament.

“Our amendments mandate a completely decentralized, read-only electoral results management infrastructure for the media, candidates/political parties and the IEBC Chairperson, giving pure architectural effect to the constitutional dictates of Articles 1, 38, 81, 86 & 138,” Wambua explained.

Some of their proposals include amending Section 39 (1A) (c) of the Elections Act by deleting the words 'the collated results for the election of the President to the national tallying centre'.

They also want Section 39 (1C) amended by replacing the current section with a new section for purposes of a presidential election.

They seek to ensure that presiding officers electronically transmit, throughout by the hour, on voting day, the voter-turnout of an election for the President for their respective polling station to the returning officer at the constituency tallying centre.

They should also be live-streamed and displayed on a big screen at the constituency tallying centre.

They also propose that the presiding officers electronically transmit and physically deliver the tabulated results of an election for the President from a polling station to the returning officer at the constituency tallying centre.

The coalition has also proposed declaration of presidential results for that Constituency, publish the result forms on an online public portal maintained by the Commission, live-stream the declaration of the said Presidential results, which shall be displayed on a big screen at the constituency tallying centre.'

Others include amending Section 39 (1D) by replacing the current section with a new one reading that the returning officer should verify that the results transmitted to the Constituency Tallying Centre are an accurate record of the votes counted, tallied and announced at the respective polling stations.'

They have also proposed an amendment to Section 39 (1G) by replacing the current section with a new one stating that the Commission establishes a mechanism for the live-streaming and display of presidential election results as announced at polling stations, and at the point of declaration in each of the 290 Constituencies tallying centre, plus the diaspora vote.'

They were concerned that IEBC has rushed to re-issue the technology tender without complying with the orders of the Public Procurement Review Board and High Court.

“IEBC has failed to take into consideration the People's Coalition demands on election technology. Due to these circumstances, the coalition shall take appropriate legal action compelling IEBC to issue a fresh election technology tender based on specifications that give the intended constitutional effect and purpose of a decentralized, modular election technology architecture,” Wambua stated.

They also rejected any attempt to bundle registration, biometrics, and results transmission into a single-vendor, monolithic tender or contract.

They demanded that IEBC adopts a decentralized, modular electoral technology system.

The coalition also want full public disclosure of source codes, server configurations, and a strict requirement that all KIEMs kits be geo-fenced within 50 meters of gazetted and geo-referenced polling stations, with independent escrow deposits secured by January 31 and full public load testing completed by July 27, 2027.

“IEBC must start anew on procurement of election technology, with publication of the Policy on Election Technology. This should be followed by a requirement analysis report, and then a solution design and feasibility report which would then inform the election technology procurement specifications report and a deployment plan,” the coalition demanded.

They cautioned the political establishment or actors in IEBC or Parliament who intend to slow-walk, obstruct, or dilute these reforms.

“If the State attempts to force Kenyans into another opaque, unconstitutional election cycle in August 2027, the people shall exercise their sovereign and inalienable right to determine their governance,” the coalition warned.