The High Court has stripped the electoral commission chairperson of significant powers of tallying the presidential election in a decision endorsed by CORD leader Raila Odinga.
The decision by three judges — Chacha Mwita, Weldon Korir and Aggrey Muchelule — knocked down all sections of election rules and regulations subjecting presidential vote announcement made at the constituencies to verification by a national tallying centre.
The national tallying centre is usually presided over by the Independent Electoral and Boundaries Commission (IEBC) chair. CORD leadership has always argued that the results announced at the constituencies by the returning officers ought to be final and that a national tallying centre has no basis in law to alter or change.
In their ruling Friday, the judges agreed with three petitioners — Maina Kiai, Khelef Khalifa and Tirop Kitur — that results from the constituencies are final and cannot be altered by IEBC in the national polling centre.
They dismissed IEBC’s argument that the constituency tallies are provisional or temporary until officially declared by the chairman of the commission who also doubles up as the chief returning officer.
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“How can results which have been tallied be said to be provisional or temporally?” the judges posed and answered:
“If the results are altered at the national tallying centre, that would be against the principle of a fair election. IEBC cannot engage in confirmation of results. It cannot correct an error as it will be taking the powers of the court.”
Immediately, Raila endorsed the ruling, saying it upheld the principal law of the land. He said the results declared at the constituencies are the most authentic and everybody, including the media, should report them as declared.
In the aftermath of 2007 and 2013 elections, Raila claimed he was robbed of his victory through the tallying process. The tallying of the 2007 presidential poll was found by an independent commission to have been so much marred with fraud that to know who exactly won the election would have required a miracle.
“The results declared by the returning officers are final. There should be no super returning officer sitting in Nairobi purporting to tally the results. The work of the national office should and will be to add results from the 290 constituencies,” said Odinga, when he fielded questions from journalists at Orange House Friday.
“The media will also have the liberty to broadcast and publish the results as they trickle from the constituencies. Once announced by the returning officers, the information will be public and therefore they can announce. That has always been our argument,” he said.
In their ruling, the three judges found that what is declared at the constituency cannot be added, reduced or even revoked unless the same is challenged in a court of law. They said the work of the national polling centre is just to add what is remitted from the 290 constituencies and declaring the winner.
In the case, the commission had argued that the constitution gives it powers to collate the presidential votes from the constituencies before they are pronounced as final. It also argued that IEBC had a responsibility to verify the results since only one court — the Supreme Court — can hear presidential election disputes.
“The tallying does not interfere with polling stations results. The results at the polling stations can be picked up and relayed to the public by the media. This is the norm in other jurisdictions across the world. The media announces the results and it is sometimes done globally,” Raila said.
He insisted that NASA will tally the results for the record: “We will use our record to compare with IEBC, which is referred to as parallel voter tallying.”
In his arguments, Attorney General Githu Muigai has said that neither the election regulations nor the constitution mentioned presiding officers at the polling stations and the returning officers at the constituencies as the final word when it comes to polls cast.
He said the reason for tallying the results at the national tallying centre is to verify results for purposes of ensuring free and fair results are disseminated. He asked the court to dismiss the case.
“The finality of the announcement of results in respect to a presidential election to which this petition pertains is reserved to the Chairperson of the IEBC,” the AG argued. The judges, however, disregarded his arguments and went on to nullify regulation 83(2), regulation 78(b) and regulation 39(2 and 3). The three petitioners had argued that Kenya can only have a clean and fair election if the results declared at the constituencies are not tampered with.
Friday, Senator Mutula Kilonzo Jnr (Makueni) and MP Peter Kaluma (Homabay Township) applauded the court’s decision, saying the declaration of results at the constituencies’ will rid the results of ‘man made’ errors.
“The declaration at the constituencies’ will be final. Kenyans will know the results and skip the anxiety that built before the winner is announced. They can add and know the outcome before the chairman declares the winner,” said Kilonzo Jnr.
- Story by Kamau Muthoni, Roselyne Obala and Carolyne Bii