According to Regeru the law in Section 259 of the Constitution provided an overriding value in interpreting the Constitution, in a purposive manner and thus arguments on rejected votes was not just on the plain reading of Section 138 (4) of the Constitution/ALI ALALE
Lawyer Njoroge Regeru for three petitioners and Fred Ngatia for president-elect Uhuru Kenyatta argued that rejected votes had a significant effect on the tally if factored and could easily trigger an unnecessary run-off.
According to Regeru the law in Section 259 of the Constitution provided an overriding value in interpreting the Constitution, in a purposive manner and thus arguments on rejected votes was not just on the plain reading of Section 138 (4) of the Constitution.
He insisted that Regulation 77 of The Elections (General) Regulations Act 2012 provided that votes which did not communicate the intention of the voter or were acquired by the voter without proper procedure should not be counted.
Regulation 77 describes rejected votes as: Which does not bear the security features determined by the Commission; on which votes are marked, or appears to be marked against the names of more than one candidate; on which anything is written or so marked as to be uncertain for whom the vote has been cast; which bears a serial number different from the serial number of the respective polling station and which cannot be verified from the counterfoil of ballot papers used at that polling station; or is unmarked, shall, be void and shall not be counted.”
Regeru said that if Section 138 was read plainly it could mean that a fake or fraudulent ballot could be given the same value as a valid vote.
He argued that Independent Electoral and Boundaries Commission (IEBC) while conducting the referendum in 2010 did not include rejected votes and that there was no reason to explain the shift from that position.
“They succumbed to pressure and moved away from their original correct position of not counting rejected votes and even ignored legal advice from the Attorney General to do a public relation exercise,” he submitted.
Lawyer Fred Ngatia told the court that IEBC only included the rejected votes after a letter of complaint from the Orange Democratic Movement (ODM) and pressure from British High Commissioner Christian Turner.
He said that transmission of results began late evening on March 4 electronically without the component rejected votes were not factored and that same was reversed the next day without consulting all the parties.
“A candidate who is at 53 percent for instance may easily come to 49 percent once you factor in a huge component of rejected votes which necessitates a run-off,” Ngatia said.
“The electoral body departed from its original position…It was an announcement done possibly after the complaint by ODM,” he insisted.
Ngatia argued that a vote could not be equated to a ballot paper as the law requires that only votes are counted.
Lawyer Katwa Kigen who is representing Deputy President-elect William Ruto said if included, the rejected votes were likely to work unfavourably to the leading contender.
Counsel Karori Kamau acting for IEBC said that the commission made the decision to include rejected votes on the reading of Article 138 of the Constitution and was made at a point when there was no dispute.
Lawyer George Oraro representing Prime Minister Raila Odinga objected to the application saying the Constitution was clear that all votes cast should be counted to determine who got the majority.
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