Nothing illegal in opposition and media houses having parallel tallying centres

I have read two articles on why proposed opposition parallel tallying centre is illegal by two lawyers, Kibe Mungai and Alex Gatundu.

Alex Gatundu, who is a council member of the Law Society of Kenya, is also an ardent Jubilee supporter whose pronouncements on national issues are usually subjective and in support of the Executive.

When he therefore takes a stand, such a stand must be subjected to thorough empirical and critical analysis and introspection to determine who he is speaking for.

Needless to say, the two articles are extremely tortured and are on an unsuccessful expedition or mission to find a law to support their argument that the intended parallel tallying centre by National Super Alliance or the Media is illegal.

Their main plank, central point and thrust of their argument revolve around Article 88 of the Constitution of the Republic of Kenya that gives authority to the Independent Electoral and Boundaries Commission (IEBC) to conduct or supervise referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament.

The Constitution is clear on the mandate of IEBC and I don’t understand the Opposition to be saying that they want the Law amended to give them authority to carry out those functions that the Law has given IEBC. They recognise that the ultimate organ grinder is the electoral body.

The Elections Act (cap 7) of the Laws lays down the procedure for conduct of elections and the offences under that act.

It is an Act of Parliament that provides for the conduct of elections to the Office of the President, the National Assembly, the Senate, county governor and County Assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes.

The act is very clear on the powers of the Electoral body and what amounts to Election offences under the Law.

The word ‘tally’ is originally from Latin word ‘tallatio’ which means keeping accounts by tallies.

According the Black Law Dictionary, the word tally or talley, means stick cut into two parts, on each whereof is marked, with notches or otherwise, what is due between debtor and creditor.

It was the ancient mode of keeping accounts. One part was held by the creditor, and the other by the debtor.

According to the Readers Digest Word power the word “tally” means current score, a record of a score or amount, a particular number taken as a group or unit to facilitate accounting purposes, calculate the total number.

When the Opposition is talking about setting up a parallel tallying centre, they are simply talking about a building or a place they convene to discuss, compare notes, take tea and keep record of their votes as results come in.

There is no single provision in the Constitution or the Election Act that stops any Kenyan from doing that.

The elections offences are very clear and setting up a tallying centre is not one of them.

These are internal party functions to assist them gather evidence, weigh where they are as a party and gather evidence in preparation for a petition in cause of fraud and electoral by malpractices by the polling agency or their opponents

Secondly, there is nothing under the law stopping media houses from tallying and relaying results.

Under Article 35 of the Constitution of Kenya, the citizens of the Republic of Kenya have a right of access to information so long as that information does not breach public order, security and cause disharmony among Kenyans.

In fact, in countries like the United States and Britain, media houses have parallel tallying centres for monitoring and relaying election results.

Finally the IEBC chairman is a lawyer of long standing and he must have looked at the law and was satisfied that there is nothing under the law that outlaws parallel tallying centres before allowing the opposition to go on.

He was satisfied that nobody in Kenya apart from himself has the mandate to announce, declare and certify the final results of the General election.

If the chairman of IEBC is satisfied there is no breach of law, who are these prophets of doom preaching heresy and misinterpreting the constitution and the law?

Those articles purporting to pitch tent against parallel tallying centre are just meant to confuse Kenyans and lend credence to the Executive position that Opposition or media houses having tallying centre’s is illegal.

There is no such law.

Mr Mwamu is a former President of East Africa Law Society and an advocate of the High Court