Form 34A or 34B, Which is Final?

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vooke
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Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 11:10 am

This looks like some trivial question but I believe it has far reaching consequences in the role of the chairperson of IEBC in declaring the final results.

Here's why,
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

Page 39
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;
]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.
So form 34A is the primary document while all other documents (34B,34C) are mere tallies,right?
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.


The judgement;
https://drive.google.com/open?id=0B2rMM ... EVSYnA5WHc
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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vooke
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Re: Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 11:11 am

My suggestion is ,either you give the chairperson some latitude in altering forms 34B,or do away with Constituency declarations,and settle for polling stations with National tallying center doing everything.

If the chairperson has some role in verification of 34B,then he has a duty to withhold declaration till he receives every form 34A used in preparing form 34B. If he has no role whatsoever, he can rightfully assume that the received form 34B was correctly prepared from forms 34A which he need not sight before declaring.

I think Chebukati used this latter argument but NASA was not convinced,and they went to SCOK and won. I'm not sure if this was a factor in their favor but I certainly wish SCOK pronounces itself in this
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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Re: Form 34A or 34B, Which is Final?

Unread post by nowayhaha » Fri Sep 15, 2017 11:19 am

vooke wrote:
Fri Sep 15, 2017 11:10 am
This looks like some trivial question but I believe it has far reaching consequences in the role of the chairperson of IEBC in declaring the final results.

Here's why,
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

Page 39
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;
]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.
So form 34A is the primary document while all other documents (34B,34C) are mere tallies,right?
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.


The judgement;
https://drive.google.com/open?id=0B2rMM ... EVSYnA5WHc

Mwalimu , at last you read the Maina Kiais ruling , this is encouraging, hopefully it has enlightened you about the role of IEBC officers in Bomas

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Re: Form 34A or 34B, Which is Final?

Unread post by Garlic » Fri Sep 15, 2017 11:19 am

"" 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.""

Now you are reasoning. Seriously. You can now see the Judiciary has messed up electoral laws and procedures for worse. Not better. The legacy of activists with little experience in legal practice but good at wheeler dealing will take years to overcome.

Sometimes we joke, but its true, that it is better to have corrupt Judge but knows law plus its consequences than an honest Judge who is also a honest fool. Especially those who tend to please "the public interest..."

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Re: Form 34A or 34B, Which is Final?

Unread post by Garlic » Fri Sep 15, 2017 11:34 am

If you take Kiai Case to its logical end you conclude that to file a Presidential petition yo need to file for each and every polling station you have issues with. And you serve Presiding officer at that particular polling station..
Yet other sections of law have IEBC Chairman/Commission as the Returning Officer of the Presidential election.

Now figure out that one. And see whether Judges knew what they were doing.

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Re: Form 34A or 34B, Which is Final?

Unread post by Energizer » Fri Sep 15, 2017 11:55 am

Mutunga and Makau Mutua's/IDLO alumni :lol: The Judiciary has been totally messed up by these arrogant criminals.
Garlic wrote:
Fri Sep 15, 2017 11:34 am
If you take Kiai Case to its logical end you conclude that to file a Presidential petition yo need to file for each and every polling station you have issues with. And you serve Presiding officer at that particular polling station..
Yet other sections of law have IEBC Chairman/Commission as the Returning Officer of the Presidential election.

Now figure out that one. And see whether Judges knew what they were doing.
We believe in Kusema na Kutenda

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Re: Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 12:11 pm

nowayhaha wrote:
Fri Sep 15, 2017 11:19 am
Mwalimu , at last you read the Maina Kiais ruling , this is encouraging, hopefully it has enlightened you about the role of IEBC officers in Bomas
Get over your bitterness and vindictiveness and focus on my subject
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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Re: Form 34A or 34B, Which is Final?

Unread post by Garlic » Fri Sep 15, 2017 12:15 pm

The only thing i credit Ngunjiri Petition for is bringing into the public how Judiciary has been brainwashed by vested interests. The Executive and security agencies have been very slow in realizing the dangers of Judiciary infiltrated by international vested interests under the guise of "independent judiciary..."

Energizer wrote:
Fri Sep 15, 2017 11:55 am
Mutunga and Makau Mutua's/IDLO alumni :lol: The Judiciary has been totally messed up by these arrogant criminals.
Garlic wrote:
Fri Sep 15, 2017 11:34 am
If you take Kiai Case to its logical end you conclude that to file a Presidential petition yo need to file for each and every polling station you have issues with. And you serve Presiding officer at that particular polling station..
Yet other sections of law have IEBC Chairman/Commission as the Returning Officer of the Presidential election.

Now figure out that one. And see whether Judges knew what they were doing.

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Re: Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 12:17 pm

Garlic wrote:
Fri Sep 15, 2017 11:19 am
Now you are reasoning. Seriously. You can now see the Judiciary has messed up electoral laws and procedures for worse. Not better. The legacy of activists with little experience in legal practice but good at wheeler dealing will take years to overcome.

Sometimes we joke, but its true, that it is better to have corrupt Judge but knows law plus its consequences than an honest Judge who is also a honest fool. Especially those who tend to please "the public interest..."
Wacha matusi kijana.

I think IEBC should challenge this at SCOK or wherever because of the ramifications.
If Chebukati sits pretty waiting for forms 34As while he has form 34B,he is failing. On the other hand,if he awaits all 34A before he can declare what he has on 34B,what happens when he spots errors?
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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Re: Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 12:20 pm

Garlic wrote:
Fri Sep 15, 2017 11:34 am
If you take Kiai Case to its logical end you conclude that to file a Presidential petition yo need to file for each and every polling station you have issues with. And you serve Presiding officer at that particular polling station..
Yet other sections of law have IEBC Chairman/Commission as the Returning Officer of the Presidential election.

Now figure out that one. And see whether Judges knew what they were doing.
This is nonsensical; you sue IEBC and throw in any of its official for a good measure. IEBC is not the national tallying center but every act of omission or commission by any of its employees in the line of duty
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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Re: Form 34A or 34B, Which is Final?

Unread post by nowayhaha » Fri Sep 15, 2017 12:33 pm

vooke wrote:
Fri Sep 15, 2017 12:11 pm
nowayhaha wrote:
Fri Sep 15, 2017 11:19 am
Mwalimu , at last you read the Maina Kiais ruling , this is encouraging, hopefully it has enlightened you about the role of IEBC officers in Bomas
Get over your bitterness and vindictiveness and focus on my subject
Mwalimu just admit you hadnt read the judgement before, now that you have read it do you see you had made wrong conclusions previously about IEBCs role in Bomas. Sometimes its good to be honest. A little reading can open eyes and brains isnt it ?

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Re: Form 34A or 34B, Which is Final?

Unread post by vooke » Fri Sep 15, 2017 1:05 pm

nowayhaha wrote:
Fri Sep 15, 2017 12:33 pm
vooke wrote:
Fri Sep 15, 2017 12:11 pm
nowayhaha wrote:
Fri Sep 15, 2017 11:19 am
Mwalimu , at last you read the Maina Kiais ruling , this is encouraging, hopefully it has enlightened you about the role of IEBC officers in Bomas
Get over your bitterness and vindictiveness and focus on my subject
Mwalimu just admit you hadnt read the judgement before, now that you have read it do you see you had made wrong conclusions previously about IEBCs role in Bomas. Sometimes its good to be honest. A little reading can open eyes and brains isnt it ?
My broda,
The ruling,in my opinion,is ambiguous as to the role of the chairperson at national tallying center. It is clear and was clear even then that he can't amend results,what's not clear is whether he needs all forms 34A or not.
"No warrior entangleth himself with the affairs of this life; that he may please him who hath chosen him to be a soldier." (2 Timothy 2:4)..

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Re: Form 34A or 34B, Which is Final?

Unread post by nowayhaha » Fri Sep 15, 2017 1:30 pm

vooke wrote:
Fri Sep 15, 2017 1:05 pm
nowayhaha wrote:
Fri Sep 15, 2017 12:33 pm
vooke wrote:
Fri Sep 15, 2017 12:11 pm

Get over your bitterness and vindictiveness and focus on my subject
Mwalimu just admit you hadnt read the judgement before, now that you have read it do you see you had made wrong conclusions previously about IEBCs role in Bomas. Sometimes its good to be honest. A little reading can open eyes and brains isnt it ?
My broda,
The ruling,in my opinion,is ambiguous as to the role of the chairperson at national tallying center. It is clear and was clear even then that he can't amend results,what's not clear is whether he needs all forms 34A or not.

Mwalimu , there you are , now twist it the way you want

[
vooke wrote:
Thu Sep 07, 2017 11:07 pm
nowayhaha wrote:
Thu Sep 07, 2017 10:54 pm
vooke wrote:
Thu Sep 07, 2017 10:31 pm


How come the verification team at Bomas missed these forms?

Ama they don't even know what a signature is?
Mwalimu,
The question should be why werent the forms signed and why are the ROs walking scot free and managers being promoted instead of being in courts facing treason charges . What will prevent the ROs not signing the forms again come Ocober 17th . How come this was in large scale in the opposition areas

FYI the courts ruled that results is final at constituency level and cant be verifiied at nor changed at the national level.
Nope,
We had a unit of six at Bomas under the watch of party agents.

How did all these blunders slip past them?

Did it take SCOK scrutiny orders and a petition to expose them?


My point is, had they arrested the errors before the declaration, and there's no reason why they shouldn't have, we wouldn't be here.

So that theory of NASA planting evidence is retarded

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Re: Form 34A or 34B, Which is Final?

Unread post by nowayhaha » Fri Sep 15, 2017 1:34 pm

below another one
vooke wrote:
Fri Sep 08, 2017 2:31 am
nowayhaha wrote:
Fri Sep 08, 2017 1:21 am
vooke wrote:
Thu Sep 07, 2017 11:07 pm


Nope,
We had a unit of six at Bomas under the watch of party agents.

How did all these blunders slip past them?

Did it take SCOK scrutiny orders and a petition to expose them?


My point is, had they arrested the errors before the declaration, and there's no reason why they shouldn't have, we wouldn't be here.

So that theory of NASA planting evidence is retarded
Mwalimu ,
Either you are naive or you ignorant which itself is not an excuse. You need to familiarise yourself with the so called Maina Kiai court ruling

http://www.nation.co.ke/news/politics/p ... index.html

The electoral commission has been told it cannot alter the presidential election results announced by its returning officers in constituencies.

In a far-reaching judgement, five Court of Appeal judges today ruled that the results announced by each of the 290 returning officers are final.

This means that the presidential results announced at the constituency level will be final and all that will be done at the National Tallying Centre is addition of the results announced at the constituencies.
Yes the results are FINAL but national tallying center can reject the results if they are transmitted in the wrong format or if they are hopelessly incomplete. If signatures are missing from form 34B it means there's nobody owning them up. IEBC should have demanded they be signed against....and so forth


Point is the ruling is not a blank cheque for all sorts of nonsense

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Re: Form 34A or 34B, Which is Final?

Unread post by Garlic » Fri Sep 15, 2017 3:10 pm

Question: when you have polling station figures as the final and unalterable fact why do you then sue the national tallying centre UNLESS they have added figures wrongly? Logically you focus on the person that legally make a difference. True including Polling station presiding officers technically means iebc would foot the legal bill or its sued. This is akin to suing employees of a company but not the directors. Ridiculous in any sense.

Lets face it: Kiai Case was poorly reasoned and concluded. And Supreme Court made it worse by coming up with the most ridiculous conclusion ever based on unknown reasoning, but going by submission made in that Court, we all wonder how they will justify their Judgement.

For practical purposes: should you petition against a constituency result, you serve the constituency returning officer. So logically if presidential results announced at the polling station are final and unalterable, then legally you need to serve Presiding Officers who are answerable at polling station level.
vooke wrote:
Fri Sep 15, 2017 12:20 pm
Garlic wrote:
Fri Sep 15, 2017 11:34 am
If you take Kiai Case to its logical end you conclude that to file a Presidential petition yo need to file for each and every polling station you have issues with. And you serve Presiding officer at that particular polling station..
Yet other sections of law have IEBC Chairman/Commission as the Returning Officer of the Presidential election.

Now figure out that one. And see whether Judges knew what they were doing.
This is nonsensical; you sue IEBC and throw in any of its official for a good measure. IEBC is not the national tallying center but every act of omission or commission by any of its employees in the line of duty

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