How 2017 Supreme Court annulment of presidential election is shaping IEBC's vote counting

Lawyers cite the 2017 Supreme Court verdict as a reason why IEBC is cautious but letting Kenyans count votes.

Slow but sure is the approach adopted by the Independent Electoral and Boundaries Commission (IEBC) to collate the votes cast countrywide and has kept eager Kenyans on the edge.

However, the Wafula Chebukati-led commission is taking no chances in ensuring that the August 9 poll is free, fair, accurate, and verifiable by painstakingly going through the forms and publicly announcing them.

Although at least 97 per cent of Forms 34A had trickled in by Wednesday evening, the commission called for patience as it verified the data sent to it alongside forms 34A and 34B.

It, however, asked Kenyans to crunch the numbers sent to the national tallying centre at the Bomas of Kenya from polling stations but wait for the final call.

Constitutional expert Bob Mkangi says although the Supreme Court was dealing with the presidential election, some of the issues it addressed have so far been implemented.

According to him, so far, no issues have been raised on the paper trail, data management, and transmission.

"So far data management and transmission and handling of the entire paper trail and the forms have little in terms in terms of dispute in terms of how the forms have been processed," says Mkangi.

He continues: "We will know the truth of the matter when the physical ones arrive at the national [tallying centre]. There is transparency, data access, and media being able to broadcast the same. However, the tussle is around tallying at Bomas and we have to wait hopefully we will not have any issues between the cast votes and what is published in the portal.

The turnout was the lowest and this was expected owing to the voter registration apathy. It is still the same ball game from the same players and lack of trust of both political players and the election process."

Lawyer Okweh Achiando says cognizant of the Supreme Court's nullification of the 2017 presidential election, the electoral commission is cautious about revealing the winner without all Forms 34 A being transmitted. He says the forms have to go through a rigorous verification process.

Okweh says that although IEBC is receiving data from the servers, it is verifying if the same is correct from forms 34A which has to agree with forms 34B. He adds that although the commission says the process is electronic, it is still manual as it involves verifying physical forms and not just the numbers sent to the national tallying centre.

"The Raila 2017 case has changed the landscape where Form 34B is automatically printed whenever you key in your details and you cannot tamper with it.

The presidential transmission process is involving data from the server and IEBC needs to verify what they are getting from the constituencies to the national tallying centre. Voting is not biometric, in my view, it is manual because it is not where you go you vote and it is transmitted immediately. In countries such as India, you just put your finger and it transmits," says Achiando.

According to him, it would be fast to know a winner in an electronic system kind of voting as immediately you vote, it is automatically sent to the national tallying centre.

The thrust of Raila Odinga's 2017 petition was that IEBC chairman Wafula Chebukati announced the final presidential result without 11,000forms 34A and that some of the forms submitted were forgeries. He averred that the transmitted numbers were cooked and did not reflect the votes cast.

At the same time, he complained that the election was not conducted per the Constitution and the Election Act, including having party agents sign result forms.

In his reply, President Uhuru Kenyatta said the commission followed the law and used Forms 34B to announce the winner.

At the same time, Uhuru argued that all party agents signed the forms and there was no proof to show they were forged. On Technology, he said, it was just to aid manual voting and that claims that an algorithm was used to generate results were fiction.

In a landmark declaration delivered on September 1, 2017, four judges led by then Chief Justice David Maraga and Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, and Isaac Lenaola voided the presidential election for IEBC's failure to open the servers for verification.

According to the majority of judges, the 2017 election was not free, fair, accurate, and verifiable.

Justices Njoki Ndung'u and Jackton Ojwang' (now retired) gave dissenting verdicts.

Lawyer Shadrack Wambui says that the commission learnt the lesson that election is not about the numbers but the process.

According to him, the cautious approach it has taken in ensuring that the tallying, transmission and final announcement contain right and verifiable numbers that are quality.

"The level of preparedness of IEBC is quite commendable and they appear to have picked some serious lessons on counting, tallying, and relaying the votes. Remember what the Supreme Court told us the quantity of the election is to be measured against the quality of the election. The judgment told us we must go beyond the numbers," says Wambui.

According to him, the numbers being tallied by media houses and the forms that are on the IEBC's portal ought to ensure accountability and transparency.

He says:" The results you are seeing on Citizen, NTV, and online are not official but they are ensuring transparency, and even the portal you will find these results. The question of accountability is important and that is why they are being posted and you can easily find these results online."