Supreme court decision leaves IEBC in a spot over results

Observers and party agents compare notes at the Independent Electoral and Boundaries Commission’s desk, Bomas of Kenya.

Observers and party agents compare notes at the Independent Electoral and Boundaries Commission’s desk, Bomas of Kenya on August 11, 2022.

Photo credit: Dennis Onsongo | Nation Media Group 

What you need to know:

  • The Constitution gives the commission seven days from election day to verify, tally, announce and declare the winner.
  • The lack of authoritative, real-time, running figures for the presidential election is a big drawback to the digitisation efforts at the commission.
  • All returning officers have been trained to fill in the handover section of forms 34B and are required to physically deliver them to Bomas.

The September 1, 2017, Supreme Court judgment that nullified the August 8, 2017 presidential election has put the Independent Electoral and Boundaries Commission (IEBC) in a tight corner against people’s demands that it live-stream the presidential election results as transmitted to the national tallying centre.

In nullifying the 2017 results, the apex court directed the IEBC to conduct a fresh presidential election in 60 days while adhering to its orders.

Before the judgment, the commission had, in the 2013 and 2017 presidential elections, provided real-time running totals per presidential candidate as they were announced in the polling stations countrywide.

In this presidential election, in compliance with the judgment, the IEBC is not providing real-time running totals.

Instead, it’s uploading forms 34A, which contain presidential election results, on its live web portal as transmitted from the 46,229 polling stations countrywide.

In the 2016 petition by Mr Maina Kiai, a former chairman of the Kenya National Commission on Human Rights, the Court of Appeal determined that presidential election results at the constituency level as contained in forms 34A are final and the IEBC cannot alter them for whatever reason.

But in compliance with the Supreme Court decision, Kenyans will not be able to tell the polling stations yet to submit or transmit presidential results.

This highlights potential areas of mischief as the people cannot spot and understand why a polling station is taking more time to transmit results when neighbouring ones have done so. 

Mr John Walubengo, an ICT lecturer and consultant, notes that the IEBC, in compliance with the Supreme Court judgment, expects the people to access the digital image of forms 34A on its public portal and do their own tallying.

“This is to allow the people to get a feeling of who is winning or losing at any given time as the transmission progresses. But it is obvious that the people lack the capacity or the time to do this,” he says.

Sluggish pace

Three days after the election was held, the national tallying centre should be a hive of activity as constituency returning officers (CROs) from the 290 constituencies flock to the Bomas of Kenya with forms 34A and 34B.

But things are quite different this time round as only about five CROs had reported to Bomas to have their results verified and recorded in Form 34C.

This notwithstanding that presidential candidates’ agents and election observers, both local and foreign, were already at the tallying centre for the verification exercise.

“The reality is that people will be in a prolonged blackout as they await the results to be finally announced by IEBC,” Mr Walubengo said.

Kitui Governor Charity Ngilu, an agent of Azimio presidential candidate Raila Odinga, urged the IEBC chairman to update Kenyans on the provisional results to “quell building tension” in the country. 

“I am appealing to the IEBC chairman to come out and give us the official presidential election results. You cannot keep the country in the waiting mood forever,” she said at Bomas.

Elgeyo Marakwet Senator Kipchumba Murkomen, an agent of Deputy President William Ruto, was also at Bomas on Wednesday night.

IEBC chairman Wafula Chebukati, however, revealed that the commission expected the CROs to deliver forms 34A physically at Bomas from yesterday morning to pave the way for the verification process. 

“We are conducting this election in compliance with the law. Once the CROs have physically delivered forms 34A and 34B, we shall start the verification process and update Kenyans on what is happening,” he said in one of his updates.

The Constitution gives the commission seven days from election day to verify, tally, announce and declare the winner.

Mr Walubengo notes that to address this gap in information flow, the IEBC has incorporated media houses to review, analyse and report on the interim presidential results in forms 34A as they stream in.

However, the media houses are providing different totals, with different candidates leading, which is not as authoritative as the results the IEBC used to provide on the big screens.

The 2007 report by retired South African judge Johann Kriegler, who chaired the Independent Review Commission (Irec) on electoral reforms following the bungled 2007 presidential election, recommended digital systems in the electoral process. This was a way of increasing transparency to enhance the integrity of the election as “opaqueness is fertile ground for mischief.”

The lack of authoritative, real-time, running figures for the presidential election is, therefore, a big drawback to the digitisation efforts at the commission as recommended by Irec.

The Supreme Court order was based on the fact that the IEBC failed to ensure the figures keyed into the Kenya Integrated Electoral Management Systems (Kiems) in 2017 corresponded to the scanned forms 34A.

The judgment indicted the IEBC chairman, who is the national returning officer (NRO) in the presidential election, for failing to check the aggregated tallies in forms 34B against the scanned forms 34A.

The court also faulted CROs and the NRO for failing to fill in the handover and takeover sections of form 34B, meaning they did not verify the results before declaring them. 

“The commission declared the election of the president before receipt of all the results from forms 34A from the 40,883 polling stations across the country. Declaration of the said results was solely on the basis of Forms 34B, some of which were of dubious authenticity,” it noted.

Past violation

By doing so, Mr Chebukati violated Article 138 (3) (c) of the Constitution, which states that in a presidential election, after counting the votes in the polling stations, the IEBC tallies and verifies the count, and then declares the result.

The Elections (General) (Amendment) Regulations of 2017 state that upon receipt of forms 34A from the CROs, the chairman shall verify the results against forms 34A and 34B received from the CROs at the national tallying centre.

The regulations further note that the CRO shall, as soon as practicable, deliver to the national tallying centre all forms 34B from the polling stations and the summary collation forms.

Article 86 (a) of the Constitution states that at every election, the commission shall ensure whatever voting method used is simple, accurate, verifiable, secure, accountable and transparent.

The Supreme Court also faulted the IEBC for failing to make available Form 34C to presidential agents as required. 

“Deployment of prescribed forms that either lacked or had different security features were highlighted as a glaring irregularity,” the court said, citing reconfiguration of forms 34C to exclude a tally for forms 34A.

“What powers did the commission invoke to reconfigure the forms?” 

The election regulations further state that upon receipt of forms 34A from CROs, the chairman shall sign and date the forms, and provide a copy to a candidate or the national chief agent present. The IEBC has taken action to comply with the Supreme Court judgment, including not providing real-time running totals to update Kenyans, and instead left this task to media houses. 

For instance, it has revised the results path to adhere to Article 138 (3)(c) of the Constitution. 

This includes CROs submitting forms 34A together with 34B to the national tallying centre; IEBC chairman verifying physically submitted forms 34B against physically submitted forms 34A, and generating Form 34C from 34Bs and 34As after verification. 

Addressing errors

The IEBC has also undertaken to ensure the NRO, upon verification, records any errors noted on form 34B and publicises the information.

All returning officers have been trained to fill in the handover section of forms 34B and are required to physically deliver them to Bomas, where the NRO will sign the takeover section.

To ensure the elections are conducted in a simple, accurate, verifiable, secure, accountable and transparent manner, IEBC has ensured that all polling station agents verify results before they are transmitted and given copies of Form 34A. 

A copy is to be posted on the ballot box and another in a public place at the polling station. 

It’s incumbent upon the IEBC to make all forms available on its web portal and ensure poll officials provide unfettered access to the media, especially for live coverage of the announcement of results from all the 290 constituencies.

The security of the system has to be tested and certifications are undertaken to prove the same will be available for scrutiny.

The commission has undertaken modification of the system to provide for a new application securely accessible only by authorised returning officers using a password to be provided directly by the NRO.

This login credential allows the CROs to upload the official forms 34B—filled, verified and duly signed by CROs and party agents—directly to the Results Transmission System.

It’s upon the IEBC to clear handover signatures of results from the presiding officer to the CRO, all the way to the NRO. 

The introduction of revised presiding officers and CRO guides or checklists is to ensure a thorough understanding of the election process.

The commission has also enhanced the training of poll officials and maintained form 34C as provided under the Elections Act.