Verification of Presidential election results is not alteration, the Court of Appeal heard on Tuesday.
While defending its Appeal challenging a High Court verdict that declared the announcement of presidential election results in constituencies as final, the Independent Electoral and Boundaries Commission (IEBC) and Attorney General Githui Muigai said.
Through lawyers Wambu Kilonzo and Paul Nyamudi, IEBC told a five-bench comprising of appellate judges Asike Makhandia, Kathurima M’Inoti, William Ouko, Patrick Kiage and Agnes Murgor that there is need for verification at the national tallying Centre.
They explained that verification of the Presidential results should be done by the commission because it is different from other elective posts and that there is a standard measure used.
They also claimed that the IEBC chair, Mr Wafula Chebukati is the presiding officer mandated to handle the declaration of the Presidential election results so as to have a single winner.
“You need a process to prove accountability. That is the essence of verification, without a centralised point of verification, without a specific Centre, there’s bound to be chaos,” Mr Kilonzo said.
But the judges wanted to know why returning officers in the 290 constituencies are not allowed to verify the Presidential election results before they have them announced.
And considering the fact that IEBC had disclosed that by the time the said results are sent to the national tallying Centre they will already be updated on a public portal of its website, the judges also wondered why there would be a need for verification if the information would have been released.
The judges also raised concerns on scenarios where the IEBC official at the national tallying Centre expected to declare the presidential election results may be influenced to interfere with them.
But the IEBC explained that the new Elections Act has set out a clear mechanism for verification and that the commission itself has an election results management framework that defines what is expected of the said official.
The commission also argued that there is a clear distinction of duties of a returning officer and the IEBC chair who declares the final Presidential results.
“There is no finality when returning officers announce Presidential elections results, declaration can only be done by an authorised officer,” Mr Nyamudi added.
On his part, Prof Muigai, told the judges to avoid politicising the outcome of the case while supporting the electoral commission’s case.
He criticised the fact that the Opposition has severally expressed mistrust with the election process as well as changes made by the government to ensure free and fair polls are held.
“It is absurd to have 290 presiding officers to declare the winner of the Presidential election,” said Prof Muigai.
SIDE OF CAUTION
And while defending the new election laws and seeking that the appeal by the commission be upheld, he argued that the law as it is, is sound enough to shield the country from past sad experiences hence no need for mistrusting the undertakings of IEBC.
“There have been extra judicial commentary on this matter, it is regrettable that any person can purport to tell judges how to rule this matter, let us litigants come before you and persuade you,” the AG said.
He added: “If you are ever in doubt, you should be on the side of caution. I have said this to Parliament before; listen to the voice that is to conduct the elections because that body, does not only have the responsibility and duty but it also has the experience.”
He also pointed out that the appointment of new IEBC commissioners and the amendments made to the election laws were efforts the government has put in place while considering recommendations of the Kriegler commission, which was set up in 2008 to inquire into all aspects of the 2007 elections with particular emphasis on the presidential elections.
The hearing continues on Wednesday.