The Independent and Electoral Boundaries Commission (IEBC) wants a decision by the high court that ruled presidential election results declared by 290 constituency returning officers set aside.
Through lawyer Wambua Kilonzo IEBC wants orders by the learned judges of the high court justice Agreey Muchelule, Weldon Korir and Chacha Mwita dismissed.
IEBC argues that the judges misdirected themselves in finding the high court has jurisdiction with questions of the interpretation of the constitution in respect of the conduct of presidential elections.
“Judges erred in law and fact in holding that the matters presented in the petition before them did not relate to the validity of the conduct of presidential elections,” said Kilonzo.
The lawyer argues that high court judges erred in law and fact by failing to take into account the fact that chairman of commission had published a gazette notice No. 2629 dated March 16 2017 and published on March 17 2017 declaring that the decision of the president of the republic of Kenya shall be held on August 8 2017.
Last month High court ruled the presidential election results announced by the 290 constituency Returning Officers appointed by the Independent Electoral and Boundaries Commission (IEBC) are final and not subject to confirmation.
The caveat that the presidential election results at the constituency level are provisional and must be re-evaluated by the IEBC headquarters in Nairobi offends the Constitution since any aggrieved party is at liberty mount a challenge in the High Court through election petitions, the three-Judge bench announced in a landmark decision.
Sections 39 (2) and (3) of the Elections (General Regulations) Act 2012 were in conflict with Articles 86, 87 and 138 of the Constitution by purporting to exclude presidential poll results from those of Governors, Senators, Members of Parliament and Members of County Assemblies, Justices Aggrey Muchelule, Weldon Korir and Enock Chacha-Mwita.
Kiai’s lawyer Ben Sianya said the nullified sections had granted IEBC powers to confirm, audit or even verify presidential election results sent by a returning officer.
“We are happy with the High court ruling which declared that once the presidential results have been announced by a returning officer at the constituency level, that result will be final,” he said.
They said the IEBC leadership had no power to confirm, approve or alter the outcome of the presidential vote after the Returning Officers at the constituency level had tallied the ballots, declared the results and issued certificates for onward transmission to the national elections agency.
The law was clear that the presidential election results could only be challenged in the Supreme Court, the Judges observed.
The court pointed out that voting was conducted at polling stations across the country and presiding officers forwarded the results to the returning officers for final scrutiny.
The returning officers were required to keep all the documents in safe custody for three years in case they were needed in election petitions, the court observed.
By purporting to confirm the results, the Judges noted, the IEBC was usurping the role of returning officers and was in direct conflict with the powers bestowed on them by the Elections Act. Returning officers and presiding officers were appointees of the IEBC and enjoyed exclusive power to supervise and manage polls, they said.
The court dismissed arguments by the IEBC that it had no power to adjudicate the matter since only the Supreme Court had the mandate to handle presidential election petitions.
However, the Judges said the petition, lodged by United Nations Special Rappertoir on Human Rights Maina Kiai and activists Tirop Kitur and Khelef Khalifa, was seeking an interpretation of the Constitution.
