, NAIROBI, Kenya, May 2 – The Independent Electoral and Boundaries Commission (IEBC) is seeking nullification of a ruling which declared presidential results announced at the constituency level as final.
The electoral body insists that it has to confirm constituency presidential results by Returning Officers before declaring them.
As a result, IEBC wants the April 7 High Court verdict by Justices Aggrey Muchelule, Weldon Korir and Chacha Mwita set aside.
The Wafula Chebukati-led Commission has faulted the decision for disregarding all laws relating to the conduct and declaration of presidential election results.
In its finding, the bench ruled that IEBC cannot purport to vary, alter and confirm presidential results announced by 290 constituency Returning Officers on the polling day as this exposes the electoral system to abuse and malpractice by the Commission and its officers.
According to the three judges, presidential results declared by the Returning Officers will only be subject to question by an election court.
But IEBC says the bench misdirected itself by failing to acknowledge that in a presidential election, the country is a single electoral unit comprising 290 constituencies and the Returning Officer is the Commission’s Chairperson.
Through Wambua Kilonzo & Company Advocates, IEBC says the judges erred in finding that section 39(2) and (3) of the Elections Act provide that presidential elections announced by the constituency Returning Officers are final.
“The judges of the High Court erred in purporting to remove the role of the presidential poll returning officer from the Chairman and unconstitutionally assigned the same to the constituency Returning Officer,” IEBC argues.
The High Court was of the view that to hold results from the constituency Returning Officers are subject to confirmation by the IEBC at the national tallying centre before transmitting them was unconstitutional.
As a result, the court declared section 39(2) (3) of the Elections General Regulations Act 2012 unconstitutional as they offend Articles 86, 87 and 138 of the Constitution.
Affirmation by the court was made following a petition by UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai and Katiba Institute challenging the management of presidential results.
Kiai and the lobby group had contended that the electoral system was exposed to abuse by subjecting presidential results at the constituency level to confirmation by IEBC’s national tallying centre.
The bench concurred with the petitioners that it was unfortunate for the IEBC to insist that it has to audit rectify or confirm the results given by the Returning Officers before declaring them.