IEBC, presidential candidates meet over forms storm

IEBC Chairperson Wafula Chebukati (centre) speaks after a meeting with  IG Police Hillary Mutyambai and DCI Director George Kinoti. [Edward Kiplimo, Standard]

The electoral commission and representatives of presidential candidates will today iron out issues raised about the printing of two sets of Forms 34A, the statutory results declaration forms at the polling station.

Independent Electoral and Boundaries Commission CEO Marjan Hussein Marjan yesterday sent invites to the four camps, following protests by the leading presidential candidates, who only learnt of IEBC’S move to print the two sets during a recent visit to the printer in Greece.

Deputy President William Ruto’s United Democratic Alliance yesterday joined Raila Odinga’s Azimio la Umoja-One Kenya coalition party in demanding answers from the commission.

“Our representatives engaged the IEBC commissioners who were part of the delegations and openly opposed the printing of the second set of form 34A… In our view, the commission should stick to one set of Form 34A,” UDA Secretary General Veronica Maina said.

She noted that each set contained an original Form 34A and “five carbon copies.” Paul Mwangi, Raila’s legal advisor, had raised the same issues on Wednesday and had wondered why IEBC was not printing Forms 34B, the declaration forms used by constituency returning officers.

Mr Mwangi said the IEBC had explained that Form 34B would "generate itself when results from Form 34A are keyed.”

And so today’s meeting will discuss matters relating to the two statutory forms as promised by Mr Marjan in his letter.

Issues around Forms 34A and Forms 34B are not new. Neither are they light. The IEBC would know best, given the nullification of the 2017 presidential election, which was majorly due to irregularities in the stated forms.

Among the “most glaring irregularities”, as the Supreme Court observed, was absence of security features in some forms.

“We were disturbed by the fact that after an investment of taxpayers’ money running into billions of shillings for the printing of election materials, the Court would be left to ask itself basic fundamental questions regarding the security of voter tabulation forms,” the Supreme Court majority decision read in part.

The presence of security features is, seemingly, not a matter of concern by Azimio. The sticking issue is that by printing two sets of Forms 34A, the IEBC is creating room for a parallel declaration of alternate results. This is because of the weight Form 34A bears over other result declaration forms (Form 34B, the constituency-level declaration form and Form 34C, the national-level equivalent).

The Elections General Regulations Act 2017 identifies Form 34A as the primary result declaration form, as affirmed by court decisions. One such is that of the Court of Appeal in dismissing the IEBC’s appeal of the Maina Kiai case of 2017, in which Kiai had secured a judgement that the results declared at the polling station are final.

“The lowest voting unit and the first level of a declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station,” the Appeal Court judgement read.

At the end of counting the presidential results on August 9, presiding officers will record the results on Forms 34A and electronically transmit an image of the form to an IEBC portal, which will reflect at the constituency and national tallying centres. Agents of the candidates will get copies of the same, with one sealed within the presidential ballot box. In 2017, agents got carbon copies of Forms 34A and 34B.

Presiding officers will then be required to deliver the original Form 34A to the constituency returning officer, who will verify the results against those transmitted electronically. In the previous election, the returning officer would enter the results on Form 34B.

The constituency returning officer is required to deliver Form 34B to the national returning officer, IEBC Chairman Wafula Chebukati, charged with verifying the results in Forms 34A against those in Forms 34B. In 2017, Mr Chebukati recorded them on Form 34C.

According to Mwangi, the IEBC said it had planned to issue “election observers, media and other stakeholders” copies of Forms 34A. He said he did not buy the explanation, terming it “a separate and parallel result declaration form.”

“The only original Form 34As that the commission needs in this presidential election is six (6) one for the National Returning Officer, one for each candidate and one inside the ballot boxes to be sealed with other election materials. Everything else can be filled out as copies on any form of stationery,” Mwangi wrote.

Azimio’s suspicions predate the recent discovery that IEBC was printing two sets of Forms 34A. At a consultative forum with presidential candidates last month, they raised concern that IEBC had lost some 4,000 Kenya Integrated Election Management System (Kiems) kits. Their worry was that the ‘lost’ kits could be used to transmit fraudulent results. But the IEBC dismissed the claims.

“We have not lost 4,000 kits. We bought 45,000 kits in 2017. We have tested all of them (and) about 41,000 of them are working and about 3,000 are not working and are available for you to see,” IEBC ICT Director Michael Ouma said.

His statement was, however, not clear on whether the commission could account for some 1,000 Kiems kits. Ouma had, however, clarified that the IEBC had established strict security protocols that would ensure that the IEBC server would be pre-configured to only accept the result forms of IEBC-sanctioned Kiems kits.

The issue of security features would arise in Forms 34B and Form 34C and they did in the petition that overturned the 2017 election.

“The scrutiny ordered and conducted by the Court brought to the fore momentous disclosures. What is this Court, for example, to make of the fact that of the 290 Forms 34B that were used to declare the final results, 56 of them had no security features? Where had the security features, touted by the 1st respondent, disappeared to? Could these critical documents be still considered genuine?” the Supreme Court posed.

In his letter, Mwangi said that it was necessary that Form 34B is printed with security features, and not “generated” as he said the IEBC proposed to do.

According to the former Chief Justice David Maraga-led Supreme Court, Form 34C, too, requires security features in conforming to the constitutional requirement that voting systems must be “simple, accurate, verifiable, secure, accountable and transparent.”

“Form 34C, which was the instrument in which the final result was recorded and declared to the public, was itself not free from doubts of authenticity. This Form, as crucial as it was, bore neither a watermark nor serial number. It was instead certified as being a true copy of the original.”