Lawyers: Vote re-tallying revealed discrepancies

By Standard Digital Reporter

Nairobi, Kenya: The re-tallying of votes from 22 polling stations and an audit of all Forms 36 used in the March 4 election revealed errors that were disclosed to the Supreme Court on Friday.

Lawyers representing electoral officials immediately dismissed these "clerical errors" as insignificant to the final outcome.

Lawyers representing petitioners said the scrutiny revealed there were ten missing Forms 34 out of the 18,000 looked at in the retally. There were also errors in some of the Forms 36 used to declare results at the national tallying centre.

Form 34 is the statutory Declaration of Results at Polling Station in respect of the Presidential Election. Form 36 is the Declaration of aggregated tally of Results in a Constituency/county in respect of Presidential, National Assembly, County Women Representative, Senator, Governor and County Assembly Representative elections.

Lawyer Kethi Kilonzo, representing Africog, singled out Laikipia West constituency where the team said they got two Forms 36 hence "were not able to verify the votes cast". Uhuru got 70,760 votes in the area.

She took issue with the fact that ten Forms 34, all for polling streams in different constituencies, were not provided to the scrutinising team.

“Under article 138 (4) a candidate must meet two thresholds of getting more than 25 per cent of votes cast in more than half of the counties and 50 percent plus one of the total votes cast,” she added. “The IEBC were under responsibility to tally and verify all 33,400 polling stations. The formula is mathematical and the constant is 'all votes cast'. If there are Forms 34 missing, where are they and what are the results of those?"

She pointed out that the results were compiled by March 5 adding: “Even if returning officers were walking to Nairobi they would have reached by now,”

She said the IEBC made a decision to announce the winner without completing tallying from all polling stations.

“Even if it was one polling station, the chairman could not announce the results without that form in his hand,” she added, “In the 10 constituencies can the court state with certainty what the results were?”

She said with the results of the scrutiny ordered by the court, the judges should ask if the constant formula of tallying all votes cast had been used.

She asked the court to decide if the IEBC carried out its mandate as required by law and whether its declaration of winner should be upheld.

Lawyer George Oraro representing Prime Minister Raila Odinga said there were grave errors in Forms 36 from seven constituencies. He said in some instances, there were two Forms 36.

He said there were "huge discrepancies" in the Forms 36 used in the final tally of presidential results and added Uhuru Kenyatta could not have garnered the 50 per cent plus one vote based on the errors.

But the Independent Electoral and Boundaries Commission through lawyer Nani Mungai said the discrepancies in Forms 34 and Forms 36 were explained by Returning Officers in affidavits filed in the case.

Lawyer Fred Ngatia for Uhuru Kenyatta said there were clerical errors across the country but added they were not substantial.

“Voting, counting and tallying of the presidential election was done to a substantial degree of accuracy,” he said.

Lawyer Katwa Kigen representing Deputy-president elect William Ruto said the elections were conducted fairly.

“The elections were conducted by humans and humans commit errors, mistakes and oversight but in this case they are insignificant and do not suggest malice or collusion,” he said.

Chief Justice Willy Mutunga said they have retreated to write the judgment and will deliver the ruling on Saturday.