NASA flag bearer Raila Odinga addressing the press. (Photo: Jenipher Wachie/Standard)
Presidential candidate Raila Odinga’s coalition won another round against the Independent Electoral and Boundaries Commission (IEBC) when the Court of Appeal ruled that elections results announced at constituency level will be final.
Friday, the IEBC suffered a major setback after a five-judge bench affirmed the High Court’s decision that results declared by returning officers cannot be altered or changed at the National Polling Centre.
Attorney General Githu Muigai and two lawyers hired by the commission, lost the case despite spiritedly arguing that IEBC chairman had the final word on the declaration of the presidential results.
The Opposition, led by lawyer James Orengo and Africog Director Maina Kiai, opposed the appeal against a High Court ruling that had decreed that results tallied and announced by the returning officers at the constituencies were final.
The AG also accused the courts of engaging in politics instead of sticking to their law interpretation role.
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“We have considerations that are not of the law and the Constitution but of the best political outcome. The interpretation by the judges amounted to politics,” he said in the 38-minute submissions. “The entire case was inviting the court not to a constitutional text but to discuss a political theory.”
Raila wasted no time in expressing his excitement with the court ruling on declaration of results.
Speaking in Sirisia during his tour of Bungoma County Friday, the NASA presidential candidate said the courts had agreed with the Opposition’s argument about the tallying of votes at the constituency level.
“The ruling is a big boost to the Opposition as the results announced at the constituency level will be final. We are happy with this ruling. We now know that the results will not be altered when they are taken to Nairobi as was the case before,” he said.
Raila said no one will alter the final tally as NASA will be monitoring the results announcement from the polling station level. He said this was one of the signs the Jubilee administration should prepare for a defeat in the coming elections.
“Their days are now numbered and they will not try anything strange. This is what we wanted and it is a sign of good things to come,” he said.
NASA running mate Kalonzo Musyoka said IEBC had no otherwise but to comply with the ruling.
Kalonzo said the ruling signaled a new era where vote tampering was impossible, saying Jubilee will now be defeated.
The bench, Judges Asike Makhandia, Kathurima M’Inoti, Patrick Kiage, William Ouko and Agnes Murgor laboured for four and half hours to rule that the results at the Constituency level cannot be changed unless they are contested before an election court.
IEBC had appealed the High Court’s decision, arguing that the final declaration of the presidential vote should only be reserved for the commission chairman after verification of the results declared at the constituency and county levels. The judges found that the way to cure the mischief of doctoring results is through electronic relay from the polling centres to a secured portal set by IEBC.
According to the court, IEBC as an institution is distinct from its chairman, ruling that the commission exercises its powers through the returning officers who are entrusted to call the election results.
The judges explained that the officers are the commission’s employees and must be entrusted to work in the interest of the electoral body and ensure the right results are declared. They said the chairman cannot be the one to determine what is correct or wrong in the results.
The Court of Appeal found that verification is only meant to ensure that that the number of votes cast, those spoiled and those remaining add up to the total number of ballots issued to a particular poling station.
“It is evident to us that the rules are set out. IEBC is required to verify and tally without interfering with the results,” the judges ruled.
“There is no doubt that the people of Kenya did not intend to concentrate the powers on one person, the chairman,” they added.
They, however, pointed out that the task of declaring the winner is only with the IEBC chairman, and thus the returning officers should only announce the results and not the winner.
The court also threw out the argument by IEBC that the High Court had no powers to hear the case, arguing that presidential election matters are a reserve of the Supreme Court. “The argument is doomed and is meant to suffer the same fate. It is dismissed,” the court found.