I agree with this analysis
https://www.standardmedia.co.ke/article ... lying-case
If, in this complex mix of things, the High Court holds that the presidential results declared by the CROs are final rather than provisional, the Commission will have no means whatsoever to curb wilful or inadvertent electoral malpractice as required of it by Article 86 of the Constitution.
Logically, if the result declared by the CRO is final then a petitioner in a presidential dispute would have to sue each of the 290 CROs rather than the chairperson of the Commission.
However, anyone who has cared to read the Report of the Krieglar Commission on the 2007 General Election knows that there was no evidence of rigging at the presidential tallying centre and that any malpractice took place at the constituency level.
This interpretation of the Constitution is clearly wrong because the duty to hold presidential elections in the 290 constituencies is vested in the chairperson of the IEBC as the presidential returning officer. Last Friday but one, a three-judge bench of the High Court comprising Justices Aggrey Muchelule, Weldon Korir and Chacha Mwita delivered a landmark ruling that the presidential results announced by constituency returning officers are final in respect of the constituency and can only be questioned by the election court.
Accordingly, my honest view is that contrary to its noble objectives, the Maina Kiai judgement will promote rather than eliminate electoral malpractice in presidential elections. Finally, from a practical point of view, three things are worth nothing. First, the role of IEBC chairman as the returning officer has been stripped of any practical value as all he would now have to do is to add up the results announced by returning officers in the 290 constituencies and announce the winner. Secondly, there may be no practical need for IEBC to purchase an expensive system of results transmission because Form 37 signed by CROs showing results of each presidential candidate would be final henceforth. Thirdly, there would be no need for a presidential elections tallying centre because IEBC can as well add in its offices the results from the 290 constituencies and declare the winner.
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