, NAIROBI, Kenya, Jun 23 – The Court of Appeal on Friday upheld the High Court’s finding that the Presidential election results as announced by the 290 constituency returning officers are final.
The bench of five unanimously found that to give the Chairman of the Independent Electoral and Boundaries Commission the power to alter or vary the results after they are electronically submitted to the national tallying centre would fly in the face of the Constitution.
A Constitution, they were at pains to point out, borne out of the hard-won lessons of the 1992, 1997 and 2008 post-election violence that was rooted in a lack of confidence in the final presidential election result.
“There is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual,” Presiding Judge William Ouko read out.
“There was near unanimity in opinion that, since the first level of declaration of results is at the polling station, those results should be final and should only be challenged in a court of law; that the form filled out for the declaration of results at the polling station should be the primary election form and all other forms can only be tallies of the final results rather than confirmation forms.”
The court also found it “hypocritical and incongrous” that the Commission would question the accuracy of results transmitted to it by its own electoral officials.
Besides which, the court found, there were sufficient safeguards at the constituency tallying centres in the form observers, agents and accredited media which they juxtaposed against the position in which the Commission Chairman would find himself.
“Any changes to what was counted, confirmed and verified at the constituency level before transmission is manifestly outside his powers and competence. It could well be tantamount to a serious assault on the will of the people of Kenya and an impermissible breach of the Constitution.”
They therefore agreed with the High Court decision to declare null and void the provisions of the IEBC’s regulations and the Election Act that ran contrary to the tenets of a free and fair election: transparency, accuracy and efficiency.
“It is our firm position that the purpose for which section 39(2) and 39(3) of the Elections Act and (IEBC) regulation 83(2) and 87(2)(c) were promulgated or made, have the effect of infringing Constitutional principals of transparency, impartiality, neutrality, efficiency accuracy and accountability.”
“To suggest that there is some law that empowers the Chairperson of the IEBC as an individual to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centre is to donate an illegitimate power.”
The bench composed of Judges Ouko, Milton Makhandia, Patrick Kiage, Agnes Murgor and Kathurima M’Inoti also found that the High Court had every business deciding the matter in the first place given the instances in which the Supreme Court has exclusive jurisdiction over matters concerning the presidential election are clearly spelt out in its rules.