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Why Chebukati must ‘verify’ all election results

By Nzau Musau | September 30th 2017
Electoral and Boundaries Commission Chairman Wafula Chebukati addresses the media at the National tallying center in Bomas on August ,10,2017. [PHOTO: JOHN MUCHUCHA]

The electoral commission is mulling over drastic changes in the vote transmission system following the Supreme Court decision that annulled August 8 presidential results.

An Independent Electoral and Boundaries Commission (IEBC) internal appraisal of the Supreme Court decision has confirmed that the transmission infrastructure will have to be overhauled to accommodate a new layer of transmission added by the court.

The new layer, provided for by Article 86(a), qualified by the Supreme Court but underestimated by previous court decision, is called “verification.” It entails the chairman of the commission Wafula Chebukati “verifying” results presented to him.

The appraisal by IEBC lawyers has also ring-fenced certain critical issues that have left the commission more confused than enlightened. Consequently, IEBC may move back to the court for clarification.

IEBC CEO Ezra Chiloba told Saturday Standard the commission intends to implement the Supreme Court decision to the letter.

“The transmission regime they proposed is quite a departure from the one given by the Court of Appeal in the Maina Kiai case. On the face of it, and subject to further advice, a lot will have to change in this area,” Mr Chiloba said.

While the Kiai decision forbid the national returning officer (Chebukati) from interacting with From 34As from the polling stations and instead rely on Form 34Bs from constituency returning officers to make the final Form 34B, the Supreme Court decision has opened up chairman’s access to Form 34As.

“The onus placed on the chairman to verify the results places him in direct confrontation with Maina Kiai decision which removed Form 34A from his scope. He must now receive and verify Forms 34A against Forms 34B before declaring the results,” a source involved in the review of the decision said.

The sum-effect of the decision, commission insiders say, is that the court has restored the 2007 scenario of returning officers trooping to the national tallying centre with original Form 34A’s for verification ahead of declaration of the results.

The transmission process would then entail presiding officers filling and electronically transmitting the forms, physically delivering them to constituency returning officers who then collates, tallies and fills Form 34B and transmits them electronically again.

Physical delivery

The constituency returning officer will be required to fill and sign the handover section of Forms 34A and physically deliver them to the national tallying centre.

The chairman will then receive all the forms, fill the take-over section, verify the results, prepare Form 34C and declare the results.

The new mode of transmission, the commission believes, creates confusion for the chairman as the returning officer for the presidential election since the court did not define the term verification. The commission is at a loss, for example, as to whether the chairman can amend the figures.

 “The commission may have to go back to the court under Rule 21 of the Supreme Court Rules to seek a clarification of this new development,” another commission source said.

The other Supreme Court finding IEBC is at a loss over is the finding that their failure to allow full access to its servers was a measure of proof of infiltration or bungling of the transmission process by IEBC itself.

 “It’s a startling finding, one which has far-reaching implications not just on the integrity of our processes but also on jurisprudential grounds. We do not agree with that position. We will be undertaking an independent audit of our servers to disapprove these fears,” Chiloba said.

He refused to divulge more on the commission’s apprehensions with the court decision, instead promising to implement the wishes of the highest court in the land.

Further, Saturday Standard established that the commission was at a loss of what to make of the court’s references to illegalities on their part despite not making specific findings in that regard. Similar allegations against President Uhuru Kenyatta were disapproved by the court.

‘Bizarre’ probe

Already, Director of Public Prosecutions Keriako Tobiko has ordered a probe on IEBC officials on the basis of this finding which commission lawyers find bizarre.

“The fact that no specific allegations of illegality were made against the commission and no finding was made by the court in the discussion on illegalities is critical because in the final orders, the court made reference to alleged illegalities on the part of IEBC despite no specific finding being made in that regard,” a commission lawyer has written.

Other changes the commission will have to make entail provision of alternative network coverage to cover areas without 3G or 4G connectivity, more training of staff to achieve the high standards set by the court and separation of servers hosting results transmission from the one hosting other processes.

The commission will also have to change the manner of transferring data from the various forms to eliminate chances of officers messing up.

More trainings and evidence of the same will have to be undertaken to protect the commission from slipping into similar situations in future.

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