Panel says media free to tally and declare constituencies’ polls data


Ballot boxes in Juja, Kiambu County ready for distribution at Magu High School [John Muchucha, Standard]

Media houses should resist any attempt to curtail them from broadcasting the final presidential election results as announced at the constituencies in the August polls.

In a lively discussion at Standard Group PLC’s “Simply Put” podcast, law scholar Ben Sihanya said the courts have insulated the media, and generally all Kenyans who can hold paper and pen, on the question of collating the final vote.

The podcast featured a discussion of Civil Appeal No. 105 of 2017, famously known as the Maina Kiai decision, and its implications on the August vote. The decision turned the tables on Independent Electoral and Boundaries Commission (IEBC) chair as relates his presupposed role in affirming presidential election results.

“If there are regulations to that effect, media houses should go to court and have them nullified. Results should be announced right from the polling stations. That is why they are pasted at the doors. Everybody who has a pen, piece of paper and brain can collate the results,” Prof Sihanya said

Besides Sihanya, other panelists included Standard Group editor Nzau Musau, Legal Assistant Melvin Atieno and the moderator, KTN’s Ken Mijungu. They affirmed that the Kiai decision burst the myth of the concept of provisional results.

In the case, Kiai was the first respondent in the appeal brought by IEBC against him and other petitioners, Khelef Khalifa and Tirop Kitur. Others drawn into the case as respondents were the Attorney General, Katiba Institute and Coalition for Reforms and Democracy (Cord).

Court of Appeal judges Asike-Makhandia, William Ouko, Patrick Kiage, Kathurima M’inoti and Agnes Murgor affirmed the High Court finding that results declared by returning officers in a presidential vote are not provisional as Elections Act and its regulations provided.

They said IEBC chairman had no role in verifying or confirming results for election which takes place in the 290 constituencies. Besides missing out of the actual processes on the ground, the IEBC chair does not have with him the benefit of the election materials for purposes of the verification.

“It is, in our view fallacious and flies in the face of the clear principles and values of the Constitution to claim that the chairperson of the appellant can alone, at the national tallying centre or wherever, purport to confirm, vary or verify the results arrived at through an open, transparent and participatory process as we have already set out,” the judges ruled.

They faulted IEBC for advancing arguments that sounded “ill, anathema and antithetical” to integrity and accuracy of electoral process.