Activist Okiya Omtatah has challenged the presidential election results arguing that none of the candidates garnered 50 per cent plus one vote as required by the Constitution.
Mr Omtatah said in a petition filed at the Supreme Court that an analysis he has done reveals that no candidate garnered 50 per cent plus one vote as required by Article 138(4)(a) of the Constitution because the commission did not factor in the untallied votes of people who identified manually on polling day.
The activist, who is also the Busia senator-elect, said there was no basis for the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati to declare any candidate as duly elected president.
Mr Omtatah alleges that Mr Chebukati did not factor in voters who voted manually, who total at least 140,028.
According to Omtatah, when the 113,614 spoilt ballots are added to 14,213,027 valid votes (being the correct sum of the alleged results of each of the four presidential candidates) to get a total voter turnout of 14,326,641, the untallied votes are 140,028.
“Untallied votes are those that were not taken into account when the returning officer for the presidential election, the IEBC Chairman, tabulated and announced the national results of the presidential election,” he said.
He said the 140,028 untallied votes plus the undeclared voters who voted manually, is not an insignificant figure in circumstances where the candidate who allegedly got 50 per cent plus one vote crosses constitutional threshold by 0.49 per cent of declared valid votes (which is equivalent to 69,644 votes).
“Therefore, it was wrong for the Chairman to have rounded off the percentages of each party to two decimal points,”he argues.
Mr Omtatah says that by providing that the candidate who gets more than half of all the votes cast wins the presidential election, the Constitution leaves no room for any margin of error. “The presidential election has to be accurate to the last vote,” he adds.
He also wants the top court to declare that the tabulation of the presidential election results announced by Mr Chebukati in Form 34C are mathematically incorrect to the extent that the total number of alleged valid votes published is given as 14,213,137 yet the correct total is 14,213,027.
“It follows that the declared turnout of 64.77 per cent (i.e. 14,326,641) of the registered voters is untenable since it is below the 65.4 per cent of voters who were electronically confirmed to have voted,” he said.
He says the chairperson of IEBC further noted that the 65.4 per cent voter turnout was minus the turnout from polling stations where KIEMS kits had malfunctioned and the commission had authorised the use of the manual register.
He said Mr Chebukati announced during his first briefing on the polling day, that the commission had authorised the use of the manual register in 84 polling stations in Makueni and 154 polling stations in Kakamega.
“Hence, with at least 65.4 percent voter turnout from verified KIEMS kits, the minimum number of votes cast was at least 14,466,779. This number could only increase by the number of people who voted manually; it could not decrease by any amount,” he said.
He says it was therefore, unbelievable for Mr Chebukati to publish in the Form 34C a total of 14,326,641 votes being valid votes and 113,614 rejected ballots.
The activist also pointed out that the commissioners fell out after one camp tried in vain to have Mr Chebukati allow them tally and verify the results.