Presidential ballot verification, re-tallying dispute escalates to Appeals Court

The judge also recommended that Parliament should streamline the election law to ensure that the tally is tightly bound and seamless. [File, Standard]

The battle over verification and re-tallying of presidential election results transmitted from constituencies at the National Tallying Centre has escalated to the Court of Appeal.

This is after Busia Senator Okiya Omtatah filed a notice of appeal, indicating that he has at least 12 grievances against High Court Judge Gregory Mutai’s finding while rejecting a bid to scrap the process.

Okiya claimed that the judgment was inconsistent on the body, and the judge had erred regarding the status of the national tallying centre and the Independent Electoral and Boundaries Commission (IEBC) chairman.

He also cited an alleged error in the application of the Maina Kiai judgment on the finality of the results announced at the constituency level.

In his judgment, Justice Mutai clarified that the exercise is not a one-man affair or simply the chairman’s exercise.

Instead, he said that this ought to be a collective Commission’s task, in a bid to avoid a repeat circus that clouded the 2022 presidential election results declaration at the Bomas.

He declared that Sections 39 (1) (c) and (b) of the Elections Act, 2011 and Regulation 32 of the Elections General Regulations are constitutional.

The judge also recommended that Parliament should streamline the election law to ensure that the tally is tightly bound and seamless.

He insisted that the Maina Kiai case made it clear that the constituency tally is final and cannot be varied unless there is an order from a court of law.

“The results of the presidential election declared uncertified at the constituency level are final, and may only be challenged before the Election Court, and that neither the Commission, nor chairperson, nor any returning officer has the power to alter, cancel, confirm, or otherwise vary those certified figures at any stage, at the tallying, or the County or National Tallying Centre, save, pursuant to a court order from a court of competent jurisdiction,” ruled Justice Mutai.

At the heart of the case was whether IEBC can verify, recount and/or alter results at the National Tallying Centre at Bomas.

In the case, Senator Omtatah, United Opposition Coalition leaders Kalonzo Musyoka, Rigathi Gachagua, Fred Matiang’i, Mithika Linturi and Justin Muturi, urged the High Court to abolish the recount and verification of the presidential election at the National Tallying Centre, saying that there is no law to establish such a mechanism.

In their final submissions before the High Court, they said that the IEBC created an illegal office of a county returning officer and verification staff, despite the law and court judgment clarifying that the results are final.

Okiya, who submitted first, had asserted that only an Election Court has the power to reopen or scrutinise the results declared by the returning officer at the constituency level.

He insisted that the avenue used for rigging is the creation of a separate level for reopening the results and re-tallying at the Bomas.

The Senator insisted that the exercise at the National Tallying Centre is illegal as it amounts to the commissioners and the IEBC chair usurping the powers of the constituencies’ returning officers.

According to him, the work of the National Tallying Centre should be a simple collation of results from each constituency without modification, verification or alteration.

The Senator further argued that Section 39 of the Elections Act, Article 86 and Article 138 of the Constitution, adding that the sections indicate that the results from the constituency level are final and binding.

“The petitioner asserts that the introduction of this redundant verification step creates a contradiction: if the results at the constituency level are final (as per the Constitution), then what exactly is the IEBC verifying at the national tallying centre? This duplicative verification process has actually served no purpose other than to open the door for potential manipulation, errors, or inconsistencies that could undermine the integrity of the electoral process in the 2013, 2017 and 2022 General Elections,” argued Okiya.

He added that the role of the IEBC chair is almost a ceremonial one, as he is only required to announce the total results from the constituencies. According to him, centralisation of tallying and verification of results violates the finality of results as required by the Constitution.

“The National Tallying Centre improperly reintroduces a level of discretion and delay into the process of declaring presidential results, contrary to the simple arithmetic requirement of Article 138(4),” he said.

Okiya’s case is the second contest filed against the commission in a bid to ring-fence the presidential contest to the constituencies.

In the meantime, the United Opposition Coalition leaders argued that once the results are collated at the polling stations and announced at the constituencies, the National Tallying Centre ought to adopt the same numbers without alteration or re-tallying.

According to them, re-tallying and re-verifying the results at the National Tallying Centre creates an opportunity for potential manipulation.

Their lawyer, Margaret Ngesa, stated that with the election being less than a year away, his clients are pushing for the Commission to deliver an accurate and verifiable election.

Ngesa further stated that the practice adopted by the Ethekon Edung-led commission creates confusion about which of the results announced at the constituencies and those at the National Tallying Centre is final.