The case against William Ruto's triumph and Wafula Chebukati

President-Elect William Ruto receives his certificate from IEBC Chairman Wafula Chebukati at the National Tallying Centre, Nairobi on August 15, 2022. [Elvis Ogina, Standard]

The August 9 presidential elections stand disputed on three grounds; declaration of William Ruto as President-elect by Wafula Chebukati, rejection of the declaration by four commissioners of IEBC and rejection of the declaration by Raila Odinga

From the onset, the protest and rejection of the declaration of the final tally by four Independent Elections and Boundaries Commission (IEBC) commissioners is profound. They have raised important triable questions about the manner of computations of forms 34 A at the Bomas of Kenya tallying centre. 

It is worrisome and perturbing that the dispute arises because the IEBC chairman failed to announce the results in a consistent and transparent manner that was inclusive and collaborative, rather than one which was confrontational and divisive. There is an ongoing debate in legal circles, as to what is the role of the commission in a presidential election versus what is the role of the presidential returning officer.

Four commissioners being the majority of IEBC say the presidential election’s returning officer overstepped his delegated authority. Article 138 of the Constitution says in paragraph 10 that the chair of the commission shall declare the result but it also says in paragraph 4, that the commission shall count and tally the votes. So, the legal dilemma is whose responsibility is it to count and tally? Is it just the returning officer or the commission, as a whole?

The four commissioners maintain that it is the role of the commission to count and tally before any declaration can be made. They have made reference to the Court of Appeal’s decision of IEBC versus Maina Kiai where the court said: “It cannot be part of the constitutional structure that the IEBC chair on his own, will do all the process of verifying, tallying and declaring the result.”

According to them, Chebakati failed to involve them in the tally.

The courts have dealt on several occasions on the interpretation of a constitutional commission.

  1. A) The commission is the commissioners who jointly have the constitutional executive mandate to implement the functions bestowed on it.
  2. B) The courts have insisted on the role of the majority commissioners and in the absence of which the courts can nullify the outcome. For good governance the Constitution requires IEBC to be transparent in all its processes.

The same principle requires that presidential agents verify the results. So, it follows that commissioners need to be fully involved to satisfy this constitutional requirement for transparency in verification. The legal question now is whether the walkout by the four commissioners render the process dead and fatal.

The elections Act has an important input in section 83, which indicates on which grounds an election can be overturned read with the constitution in articles 81 & 86. The grounds are based on quantitative and qualitative tests. An election is a process not an event. Is it marred by irregularities, that show significant doubt as to whether the outcome was free and fair?

Will retallying under the supervision of the supreme court show a different result?

Finally, and most important is the question of verifying the actual voter turnout in this dispute being addressed. 

The Supreme Court must find a way of verifying from the Kenya Integrated Election Management System (KIEMS) kit the actual figures, to compare and contrast with the voter turnout that was reflected on the voter declaration form by Wafula Chebukati. 

The bottom line of the Constitution is that elections must be free, fair, verifiable and transparent, so that released figures manifest the will of the voters.

The writer is a veteran journalist