Apex court to advise on chair altering Forms 34B

The Supreme Court will today give directions on whether IEBC chairman Wafula Chebukati can correct errors in the presidential election results.

Chebukati filed the case seeking clarification on what he should do in case there are discrepancies in the presidential results forms.

Parties were last Friday notified to appear before the top court this morning.

Through lawyer Kamau Karori, Chebukati, who is also the national returning officer, wants the court to clarify what he ought to do with the errors, if any, after verifying the presidential statutory forms.

The current law bars the IEBC chairman from altering results contained in Forms 34B. The results are final as announced at the constituency level. But the IEBC says there is confusion as the Supreme Court ruling on September 20 said the chairman must verify the results before declaring the presidential winner.

Karori said it is necessary the court clarifies whether Chebukati and the commission can correct errors in Forms 34B, when the results do not tally or conform with the results captured in Forms 34A.

The court, in a majority decision, nullified the August 8 presidential election results, citing irregularities and illegalities in the transmission of results.

Chief Justice David Maraga, DCJ Philomena Mwilu, justices Smokin Wanjala and Isaac Lenaola ruled that the illegalities and irregularities were of substantial nature to affect the final outcome. But justices Jackton Ojwang’ and Njoki Ndung’u dissented.

The commission said there is more confusion since the court, quoting the Court of Appeal in the Maina Kiai case, said the chairman cannot correct, vary, confirm, alter, modify or adjust the results.

In the Maina Kiai case, five judges of the Court of Appeal ruled on June 2017 that the results declared at the constituency level are final and it is only an election court that can correct an error in the statutory forms.

The Court of Appeal had said it would be “fallacious and flies in the face of clear principles and values of the Constitution” to claim the IEBC chairman can alone at the National Tallying Centre or wherever, “purport to confirm, vary, or verify the results arrived at through an open, transparent and participatory process”.

The judges were of the view the chairman is represented by his officers in all the 40,883 polling stations, all the constituencies and county tallying centres.

Source