The Independent Electoral and Boundaries Commission (IEBC) has appealed a critical judgement whose net impact was to do away the the creation of a national tallying centre which has in the past been abused by incumbent regimes to rig the presidential vote.
Petition No. 207 of 2016 is a case filed by Maina Kiai, Khelef Khalifa and Tirop Kitur seeking to compel the IEBC to do away with the ‘national tallying centre’ and instead, as provided for in law, have the results announced by Constituency Returning Officers as the final results.
In the past, and against the law, IEBC regulations made the IEBC Chairman the sole Returning Officer of the Presidential Results. The results Constituency Returning Officers announced were termed as ‘provisional’.
Because the IEBC Chairman sits in Nairobi waiting for results from all over the country, the window provided an avenue for tampering with the results so much so that by the time the IEBC Chairman received them, figures had been altered by collusion between state agencies and rogue returning officers, many who “disappeared” thereafter only to reappear months later.
Maina, Khalifa and Tirop therefore demanded, critically, the following declarations from the High Court.
iii. A declaration that respective constituency returning officers are the persons responsible for the conduct and announcement of constituency presidential elections results;
iv. A declaration that constituency presidential elections as declared by the respective constituency returning officers are final results for the purposes of that election;
v. A declaration that constituency returning officers possess a fundamental and an inalienable mandate to declare the final results for a presidential election at constituency level and that such declaration is final and not subject to alteration, confirmation or adulteration by any person or authority, other than an election court, pursuant to Articles 86 and 138(2) of the Constitution of Kenya.
This public narrative on this case makes it appear like it was filed by the political opposition while it was not. In fact, the political opposition was not even part of the proceedings before the high court.
The three petitioners argued that section 39(2) and (3) of the Elections Act and regulations 83(2), 84(1) and 87(2)(c) of the Elections (General) Regulations 2012 made under the Elections Act are contrary to Articles 86(b) and (c) and 138(2) of the Constitution in so far as, and to the extent that, they provide that the declaration of results of the presidential election by the returning officer at the constituency level are provisional and subject to confirmation by the 1st respondent (IEBC Chairman) after a tally of all the votes cast in the election. In the affidavit sworn by the 1st petitioner (Maina Kiai) in support of the petition he stated that the 1st respondent, in following the impugned section and regulations, has in previous presidential elections treated the results announced and declared at the constituency level by the respective returning officers in fulfillment of Articles 86 and 138(2) to be provisional subject to confirmation by some of its Commissioners and staff at the national tallying centre in Nairobi.
The act of confirming and varying the constituency results by the 1st respondent (IEBC Chairman), the petitioners stated, was not only contrary to Articles 86 and 138(2) but also undermined the tenets of a fair election. This is because, under Articles 86 and 138(2) the declaration by the constituency returning officer is final for that election in the constituency. Any impression, therefore, that such results are provisional undermines the authority given to the constituency returning officers and exposes the presidential electoral system to abuse, and makes it prone to electoral malpractice by the 1st respondent (IEBC Chairman) and its officers.
In response, the IEBC claimed that the High Court had no jurisdiction to hear and determine the matter raised, and that the issues raised were akin to re-opening Raila Odinga 2013 case. Finally, IEBC insisted that the Commission had the power to alter, vary or correct results so received, which it termed ‘provisional’, before announcing and declaring the winner.
This last observation made the judges pose the all important question:”… how can the election results which have been tallied, verified and declared to be final under regulation 83(3) be said to be provisional, temporary or conditional under regulation 87(2)(c)? Why, and for what reason, would a returning officer be transmitting “provisional” results to the Commission when he has already declared the winner and issued a certificate?”
In the end, the judges made the following declarations:
a) It is declared that to the extent that section 39(2) and (3) of the Elections Act provides that the presidential election results declared by the constituency returning officer are provisional is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
b) It is declared that to the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officer are provisional is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
c) It is declared that to the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officers are subject to confirmation by the Commission is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
d) It is declared that the presidential election results declared by the constituency returning officer are final in respect of the constituency, and can only be questioned by the election court; and
e) It is declared that to the extent that the 1st respondent interprets section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) to mean that it can confirm, alter, vary and/or verify the presidential election results declared by the constituency returning officer in the particular constituency is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void.
IEBC has appealed this judgement to the Court of Appeal.
Get the fill judgement here.
The post The JUDGEMENT on presidential tallying that SHOCKED IEBC, Jubilee forcing them to appeal appeared first on Kenya Today.
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