Raila must prove poll was compromised at the constituency

NASA principles Musalia Mudavadi(left)Raila Odinga(centre) and Kalonzo Musyoka during a press briefing at okoa Kenya secretariet on 16/8/17-Beverlyne Musili

By the time you read this article, Raila Odinga or another Kenyan will have filed a petition in the Supreme Court, since our liberal Constitution permits any Kenyan to file a petition to challenge the Presidential election. The petition hearing will be a national event and I wish to play my role in educating Kenyans on the key ingredients of the election that will be under scrutiny in the petition so that they do not get lost in the legal and political drama of the next three weeks.

On election day voters turn up at polling stations and once verified, cast a paper ballot. This year, IEBC introduced the Electronic Voter Identification Device (EVID) which would identify a voter and remove their name from the roll once they voted. This was the greatest innovation to stop ballot stuffing and may explain why the voter turnout went down by almost 10 per cent.

Upon conclusion of voting, the ballots are counted in the room where voting took place. The counting takes place in the presence of all agents available and because this happens quite early after close of the polls, all agents tend to be available.

Once the counting is completed for each seat, the presiding officer announces the result, and the agents and the presiding officer signs the statutory Form. For the Presidential poll, this is the now famous Form 34A.

Streamed results

Our elections law requires that once this process at the polling station is concluded the results are sent electronically to the IEBC national tally centre who are required by law to stream these results in the prescribed Form in an open portal. It is important to emphasize that the streamed results are not the ones used to declare the winner of the election, they are just a teaser as we await formal results. I do believe that the law requires Form 34A which was the basis of the streamed result to be on the electronic portal. This issue will definitely be raised in the petition if that was not done.

Back to the polling station; Form 34A is then transported, together with the ballot boxes and all the supporting documents, to the constituency tally centre. The Returning Officer of the constituency then collects all the Form 34As from the myriad polling stations in the constituency, verifies that they are properly filled, duly signed and stamped and then “tallies” them, a technical word for adding them up. It is at this stage that the winner of the MCAs and MPs seats are declared.

The Returning officer also announces the respective total votes in that Constituency for the President, Governor, Senator, Woman Representative. Consequently, any Constituency that announced an MP announced the results of the Presidential election. The Returning officer then completes the Statutory form, and gets it signed by all agents present. For the President, this is Form 34B.

Defective

Pursuant to the Maina Kiai Court of Appeal decision, the results declared at the constituency are final and cannot be changed other than through a petition.

The only thing that the Chair of IEBC does after this is to receive the 290 Form 34Bs as declared at the constituencies and add them up. He then checks whether any of the candidates attained the other constitutional minimums and if any of them does, declares him the winner.

I set out this process to let Kenyans know that if one is to successfully impeach the election, they have to principally prove that the election was compromised at the constituency. One must be able to show that either no result was announced at the constituency or that the results announced were defective or unlawful for any reason, including that the Form 34As that were aggregated to produce the result at the constituency were incorrect.

If sufficient evidence is presented to impeach the election at this level, the Supreme Court will be bound to cancel the poll. Any evidence that does not go towards proving or disproving the above may be politically and socially entertaining, but will be of little legal value in determining the Court’s decision. Over to the Lawyers.

 - The writer is an advocate of the High Court of Kenya