The Independent Electoral Boundaries Commission (IEBC) has asked the Supreme Court to determine whether its inclusion of the rejected votes in the final tally and subsequent announcement of results was in contravention of the law.
Council Kamau Karori who is representing the IEBC in the poll petition by the Coalition for Reform and Democracy (Cord) challenging Uhuru Kenyatta’s win in the presidential race, said that the court should have the final say as regard the rejected votes.
“This court should have the final say on the treatment of the rejected votes,” Karori said. He made the statement in response to the submissions from the petitioners and respondents to the case.
The petition in question challenging the inclusion of the rejected votes in the final tally, was filed with the Supreme Court by blogger and activist Dennis Itumbi and two others through their lawyer Njoroge Regeru.
Regeru said that the constitution does not envisage “fake” ballots counted adding that IEBC should not have included them. “Rejected votes should not have been counted and the IEBC should bear the cost of the mistake,” Regeru said in his submission.
With the exception of council George Oraro representing Cord in the proceedings, the council representing Uhuru Kenyatta as the third respondent, and William Ruto as the fourth respondent to the case, also held that the inclusion of the rejected votes worked to the disadvantage of the winner.
“Let not rejected votes be the basis for triggering a run-off in this country. Rejected votes can be used to trigger a run off,” said council Fred Ngati on behalf of Kenyatta. Ngatia further added that IEBC was not factoring in rejected votes until ODM’s intervention and stated that other candidates were not heard in the issue.
Lawyer Katwa Kigen representing deputy president-elect William Ruto also faulted the addition of the rejected votes to the final tally. “A valid vote applies only when the intention of the voter is known. Rejected votes only work against the leading contender,” Kigen said.
Attorney General Githu Muigai who is enjoined to the petition as Amicus Curiae argued for the petition saying that the move by IEBC to include the rejected votes was not fair to other candidates. “The IEBC must work for all candidates with fairness,” he said.
Councils representing African Centre for Open Governance (Africog) and Cord however argued against the petition stating that as per the constitution, all tallied votes irrespective of their clarity are supposed to be counted.
Council Oraro said, “The law considers both valid and invalid votes as total votes.” He added that it is unlawful not to consider all votes cast. Lawyer Harun Ndubi representing Africog presented a distinction of the law on the nature of ballots.
He said that the previous constitution stated that the winner of a presidential election needed to have garnered majority of valid votes. However in the new constitution, the winner is to be determined by garnering more than half of all votes cast.
Today’s submission together with others currently being made and others set for tomorrow will form the basis of the Supreme Court ruling which will have to be delivered by March 30.
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