The Independent Electoral and Boundaries Commission has challenged a High Court ruling that presidential election results announced at the constituency level will be final.
Appellate judges Asike Makhandia, Kathurima M’Inoti, William Ouko, Patrick Kiage and Agnes Murgor set the date at the end of a two-day hearing.
The Court of Appeal on Wednesday set June 23 as the day for the ruling in a case that may have far-reaching consequences on this year’s presidential election.
The Opposition has demanded a clearer explanation from IEBC on why its chair, Mr Wafula Chebukati, should have the final say on presidential election results from each of the 290 constituencies, instead of the returning officers.
While admitting there is the arithmetic aspect of getting the total number of votes countrywide at the national tallying centre, the National Super Alliance (Nasa) insisted that verification only comes in on determining which presidential candidate has met the threshold for being declared as the winner, by attaining the 50 per cent plus one vote.
“It cannot be said the law as it is gives the commission or its chair the position of varying the presidential results as received from the returning officer at the constituency,” said Siaya Senator James Orengo.
Mr Orengo was explaining the electoral process after the votes have been cast.
He claimed tallying occurs at each polling station under the watch of presiding officers and declarations are made in Form 36.
He said at the constituency level, Form 37 is awarded to the candidate who has won the presidency, from the results announced.
He, therefore, argued, presiding officers and returning officers can allow up to three recounts before making any declarations as a safeguard measure, and there was no need for alterations at the national tallying centre, as claimed by the Independent Electoral and Boundaries Commission.
He also explained the only verification done at the national tallying centre is the arithmetic bit of getting the total and determining which presidential candidate has attained more than half of the votes cast.
Together with Mr Paul Mwangi and Mr Anthony Oluoch, who represented Nasa, Mr Orengo urged the judges to uphold the High Court verdict.
The IEBC argued that the High Court did not have jurisdiction to hear and determine the matter in the first place, hence its verdict should be set aside.
Katiba Institute’s Waikwa Wanyoike and Christine Nkonge, who spoke as friends to the court, supported Nasa’s position.
The question of jurisdiction in hearing and determining a dispute on the validity of a presidential election was also the subject of a heated debate when IEBC insisted it could only be handled by the Supreme Court.
However, Mr Wanyoike said the matter at hand is an issue of interpretation of the Constitution, which is a role co-shared with the High Court, hence the matter was rightfully filed and determined.
He took issue with Attorney-General Githu Muigai’s call on the appellate judges to abstain from politicising the outcome of the case.
“The Constitution makes the Judiciary the one with the final say on a constitutional matter. This is a constitutional interpretation and not a political one,” said Mr Wanyoike. On Tuesday, the AG had fingered the Opposition, which has several times expressed mistrust with the election process as well as changes made by the government to ensure free and fair polls.
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 IEBC.
“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,” said Prof Muigai.
The recommendations of the Kriegler Commission, which was set up in 2008 to inquire into all aspects of the 2007 General Election, with emphasis on the presidential election, was also subject of the arguments.
The dispute first went to court in May last year when United Nation Special rapporteur Maina Kiai, Mr Khelef Khalifa and Mr Tirop Kitur separately filed cases seeking a declaration that the presidential election results as declared by the constituency returning officers are final.
Their cases were combined and determined as one at the High Court, which ruled in their favour on April 7. They were represented by lawyers Willis Otieno and Prof Ben Sihanya.
But the IEBC moved to the Court of Appeal on April 21, claiming judges Aggrey Muchelule, Weldon Korir and Enoch Chacha Mwita erred by failing to distinguish between announcement and declaration of presidential election results at the constituency level.
For IEBC, presidential election results have to be verified at the national tallying centre after they have been announced at the constituency level before its chair declares the winner.
Whichever way the judges rule, the dispute will not end at the appellate court since both parties hinted at going to the Supreme Court.