IEBC: Complaints of results announced at polling centre can only be resolved at apex court

IEBC Chairman Wafula Chebukati.

IEBC Chairman Wafula Chebukati speaking during the launch of the National Elections Media Centre and National Elections Call Centre at Bomas of Kenya in Nairobi on July 31, 2022. 

Photo credit: Evans Habil | Nation Media Group

Presidential candidates who will have complaints with what is entered in Form 34A will have to petition the outcome at the Supreme Court as the electoral agency says it cannot correct it.

In a General Election, Form 34A captures final presidential results at the polling station as announced by the presiding officer.

Agents of presidential candidates William Ruto (Kenya Kwanza), Raila Odinga (Azimio), George Wajackoyah (Roots Party) and David Mwaure Waihiga (Agano Party) will, however, have a chance to scrutinise the results before the presiding officer transmits them to the national tallying centre.

This is according to responses by Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati to both Azimio and Kenya Kwanza.

“Complaints with respect to the results announced at the polling station must be resolved by the presiding officer. Any complaints or discrepancies that may arise in the results form 34A can only be resolved by the Supreme Court through a Presidential Election petition pursuant to the decision in Raila Amolo Odinga and Another versus Independent Electoral and Boundaries Commission (IEBC) and two others (2017),” said Mr Chebukati.

In regard to discrepancy in Form 34B which captures presidential results at the constituency level for onward transmission to the national tally center to form 34C, IEBC says that in such an event, the commission shall use Form 34A as the accurate one and the primary document.

“Based on the foregoing, there can be no discrepancy between the results recorded in form 34A et the polling station and those transmitted electronically or even those received by the Returning Officer because it is essentially the same form captured by the presiding officer, witnessed by the agents with a resultant five carbon copies,” said the IEBC chairman.

He added: “the Constituency Returning Officer is required to collate all form 34As and prepare form 34B and submit all the form 34As together with the 34Bs to the Presidential Returning Officer. In the event there is a discrepancy between form 34As and form 34B with respect to the entries for any polling station, the entry in the respective form 34A will be taken as the correct reflection of the results at the polling station.”

On the contentious issue of parallel result forms which was strongly protested by DP Ruto and Mr Odinga’s camps and was resolved that only one will be used, Mr Chebukati has instructed his officials to strike off the already printed extra booklet.

“Following a meeting held between the commission, presidential candidates and their agents on July 29, 2022, it was resolved to only use booklet one of the two booklets bearing statutory presidential results Form 34A that has one original and five self-carbonating copies. The presiding officer shall remove booklet 2, labelled 2 of 2 of the Presidential results Form 34A from the package and seal it off in a tamper proof envelope,” he said.

He went on: “The package containing booklet 2 shall form part of the materials to be sealed in the presidential ballot box after completion of the counting process."

On the electronic transmission of results, the presiding officer shall be required to capture the image of the original results form 34A and transmit it using KIEMS kits to the national tally center, constituency tally center and a public portal.

“The presiding officer shall detach the original results form 34A and seal it in a tamper proof envelope for delivery to the constituency Returning Officer. The presiding officer shall detach and share four self-carbonated copies of the result form 34A with the four presidential candidates’ accredited agents present at the polling station,” said Mr Chebukati.

“The RO shall take an image of the original result form 34A, using a smartphone, print and ensure that it is affixed at the public entrance to the respective polling station.”

The IEBC has also assured the country that the integrity of its ballot papers cannot be tampered with or even duplicated, citing its many security features.

“The Commission appreciates the need to ensure that the ballot papers and result forms enjoy the highest form of security to avoid replication or loss. The commission has put in place elaborate security features on the ballot papers and the result declaration forms to avoid any attempt to reproduce them. These include, but are not limited to; visible and invisible security features, polling station data personalization, barcodes and QR codes,” said Mr Chebukati.

Mr Chebukati maintained that there will be no use of manual voter registers but will only be applied in a case where the Kenya Integrated Elections Management System (KIEMS) kits are spoiled and cannot be repaired.

“The commission is guided by the decision in NASA versus IEBC 2017 that adopted the Commission’s protocol to use the printed register of voters upon confirmation that the KIEMS kits have completely failed and that there is no possibility of repair or replacement,” he said adding that every ward will have six back up KIEMS kits.

The IEBC says that problems with the network will not affect the exercise saying that it will deploy satellite modems and KIEMS kits have power banks hence power blackout cannot affect it.

“The KIEMS kit voter identification function is offline hence does not require network connectivity. For the purpose of electronic transmission of results, the KIEMS kit is fitted with both primary and secondary GSM sim cards to ensure continuity of the network in case one fails. The Commission will also deploy satellite modems as back up and in the event of failure, the presiding officer shall transmit results from the Constituency Tallying Center in the presence of agents,” said Mr Chebukati.

In areas where there will be cases of insecurity, Mr Chebukati said the presiding officer will in consultation with the returning officer postpone voting exercise until normalcy is restored.

“A presiding officer in consultation with the returning officer, shall adjourn the voting process and restart at the earliest practicable moment once security and calm is restored. The voting process shall be extended by the amount of time the voting process has been stopped. The returning officer can postpone the elections to be the earliest practicable time after security is restored,” he said.

The commission has also dismissed claims that around 3000 KIEMS kits disappeared arguing that what was reported by the Auditor General was BVR kits.

“The Auditor General’s report made reference to BVR kits and not KIEMS kits. BVR kits are used for voter registration and not voting. The Commission procured 15,000 BVR kits in 2012 that have technically reached end of life,” said Mr Chebukati.

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