IEBC sparks storm with presidential vote count appeal

The Court of Appeal will this morning hear a case in which the Independent Electoral and Boundaries Commission (IEBC) is challenging a recent High Court decision that presidential election results announced at the constituency level will be final.

The April 7 decision makes the returning officers at the constituency level the final authority all election results — including the presidential vote.

High Court judges Aggrey Muchelule, Weldon Korir and Enoch Chacha Mwita appeared to agree with the applicants — UN special rapporteur Maina Kiai, and human rights activists Khelef Khalifa and Tirop Kitur — that announcing results at the 290 constituencies reduced the possibility of them being altered at the national tallying centre.

But the electoral commission reckons that the High Court erred in returning the verdict.

“In arriving at the entirety of the decision, the learned judges erred in law and in fact in disregarding all laws relating to the conduct of and declaration of presidential election results,” said Wambua Kilonzo, the IEBC lawyer.

In the appeal filed on April 21, the IEBC has faulted the judges for failing to distinguish between announcement of poll results by returning officers of various electoral units and the declaration of presidential election results by the IEBC chairperson.

The IEBC also argues that granting returning officers power to declare presidential results is contrary to the provisions of the law and that matters presented in the case did not relate to validity of the conduct of presidential elections.

The High Court judges had also ruled that only the Supreme Court has the powers to hear and determine a dispute arising out of the presidential election results.

Mr Kiai, Mr Khalifa and Mr Kitur had in May last year filed a case seeking to block any alteration of presidential election results at the national tallying centre.

Their suit had sought to challenge a section of the Elections Act that gives the IEBC the mandate to vary presidential election results submitted by returning officers at the constituency level.

The General Elections Regulations 83(4), which states that the results of the presidential election in a constituency shown in Form 34 (the results declared by the Constituency returning officers) shall be subject to confirmation by the commission after a tally of all votes cast in the election, was also declared unconstitutional.

The IEBC had argued that it had the mandate to audit the presidential election results, approve or disapprove and check for errors after receiving them from returning officers.