, NAIROBI, Kenya, Oct 17 – The Supreme Court will on Tuesday morning render judgement on how the Returning Officer in the presidential election is meant to verify results from the polling station and constituency.
It could also choose to send the Independent Electoral and Boundaries Commission Chair Wafula Chebukati down to a lower court for the clarity he seeks.
Chebukati wants the court to direct him on what action to take in the event the result from a polling station is incorrectly captured in the constituency tally.
Earlier this year, the Court of Appeal barred him from altering the constituency tally directing that any corrections to be made fall under the purview of the Supreme Court.
“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,” the judgement reads.
This led the Commission to rely primarily on the 291 constituency (including Diaspora) results in their determination of the August 8 presidential poll outcome. In their nullification of the exercise however, the Supreme Court faulted Chebukati for not verifying the results from the 40,883 polling stations in their totality.
“The Appellate Court had earlier made a pronouncement with which we are in total agreement, to the effect that ‘it is clear… that the polling station is the true locus for the free exercise of the voters’ will. The counting of the votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion.”
The Supreme Court based its finding that Chebukati could not possibly have verified all 40,883 result forms 34A, on a letter written to the National Super Alliance by IEBC CEO Ezra Chiloba – days after declaration of President Kenyatta as winner of the August 8 poll – confirming that they were not in possession of all the forms.
“By the time the results were declared on August 11, results from over 10,000 polling stations had not been received,” the Supreme Court cited as a statement of fact.
A finding Chebukati later submitted to the apex court, created “confusion,” as to what happens in the event the result from the polling station does not match that captured on the constituency result Form 34B; given the Court of Appeal finding that he does not possess the power to make any alterations to the latter.
“It would make a mockery of the election process for the Chairman to declare a result he cannot stand behind. So that we’ll be holding the country in a situation where we know that there is a petition that is coming because I read the wrong numbers,” Chebukati’s legal counsel Kamau Karuri submitted on October 11 at the hearing of the application.
Raila Odinga who successfully petitioned the Supreme Court to nullify President Kenyatta’s August 8 win, however wants the Supreme Court to reject Chebukati’s application on the grounds that it is an attempt to appeal the Court of Appeal judgement in the Maina Kiai case through the backdoor.
“”There is no appeal before you or an advisory opinion being sought so the Attorney General’s submission that you possess inherent jurisdiction over the matter, has no merit,” Odinga’s legal counsel Professor Ben Sihanya submitted on October 11.