Before Kiai Case (CIVIL APPEAL NO. 105 OF 2017), all presidential results declared at all levels(polling station Constituency and county) were provisional in that they was subject to the chairman's 'confirmation'. They could be altered even after being declared
But the Court of Appeal upheld the High Court's decision that polling station results were final and not subject to ANYTHING other than tallying at the other levels. Look
To suggest that there is some law that empowers the chairperson of the appellant, as an individual to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power. Such a suggestion would introduce opaqueness and arbitrariness to the electoral process - the very mischief the Constitution seeks to remedy. We reiterate the words of the learned Judges of the Supreme Court in George Mike Wanjohi (supra) that;
“112. ... Apart from the priority attaching to the political and constitutional scheme for the election of representatives of governance agencies, the weight of the people’s franchise - interest is far too substantial to permit one official, or a couple of them, including the returning officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State. It is manifest to this court that an error regarding the electors’ final choice, if indeed there is one, raises vital issues of justice such as can only be resolved before the courts of law.”
The same judgement towards the end reads;
So form 34A is the primary document while all other documents (34B,34C) are mere tallies,right?]The lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.
Since the chairperson of IEBC can't correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, what happens when he receives a form 34B with gaping errors like arithmetical error?
Can he reject tthem yet they had already been declared?
One brilliant mind told me he should reject them and ask the Constituency returning officer to correct it. But isn't this correcting or confirming the already declared results? And if he rejects and refers back publicized results,were the original results final?
The judgement further tells us the the only confirmation the chairperson should do is that of ballots issued,ballots used,whether the winner met the constitutional threshold and so forth.
My view is the judgement is contradictory.
You can't declare as final BOTH primary document and subsequent tallies produced from it,and this not subject to correcting,varying,confirmation,alteration,modification or adjustment.
My reasoning is simple
There exists a risk that errors may be injected into the tallying document, meaning you declare two contradictory values or figures as final.
More importantly,there is no way of dealing with these other than for the chairperson to correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres to resolve the contradiction, yet the same judgement tells us that only a court of law can resolve such.
https://drive.google.com/open?id=0B2rMM ... EVSYnA5WHc