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Judges throw out case on poll result timeline

Monday July 24 2017

 Ezra Chiloba

IEBC chief executive Ezra Chiloba. He was send on forced over alleged audit queries. PHOTO | FILE | NATION MEDIA GROUP 

RUSHDIE OUDIA
By RUSHDIE OUDIA
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The High Court has thrown out a petition in which three voters wanted the electoral agency compelled to announce presidential results within seven hours after closure of polling stations.

Justice David Majanja on Monday ruled that the petitioners failed to demonstrate that the Constitution requires the commission to announce the outcome within seven hours.

ANXIETY

Titus Alila, Jackline Otieno and Francis Ogada wanted the court to order the Independent Electoral and Boundaries Commission to announce the results without delays to avoid anxiety among the population.

The petitioners argued the seven days allowed by the Constitution to declare the presidential results was too long.

“IEBC has the discretion and flexibility to announce presidential results within the time prescribed by Article 138(10) of the constitution which states that they are to announce results within seven days,” said Justice Majanja.

The IEBC, the judge said, is an independent commission and is not subject to the control or direction of any person or authority but the Constitution.

KIEMS

“The court will only intervene where it is clearly demonstrated that there is violation of the Constitution," he said.

"It follows that that the petition must now be dismissed."

The petitioners had argued that their petition was in the public interest since Kenyans have invested Sh3.8 billion in the Kenya Integrated Election Management System (KIEMS) to ensure fast electronic transmission of results from polling stations to the national tallying centre.

KIEMS, they argued, would ensure that results from all polling stations are electronically transmitted and tallied within seven hours at the national tallying centre.

But the court rejected their plea, with Justice Majanja stating that the petitioners had also failed to demonstrate that the IEBC would violate their fundamental rights and freedoms by delaying the results.

40,833 STATIONS

“Assuming the provisional presidential results are not announced within seven hours, it is not clear how each of the rights enumerated in the constitution may be violated by IEBC,” said Justice Majanja.

The electoral commission had opposed the petition and pointed out that it would be difficult to announce presidential results within seven hours.

The high number of polling stations and the unforeseen challenges that may arise from one station to another, IEBC lawyer Erick Gumbo argued, would make it difficult to achieve the seven-hour target.

Mr Gumbo argued that there was a varying number of registered voters in the 40,833 polling stations spread across the country and, therefore, it would be difficult to close at the same time to achieve the target.

He also argued that the High Court lacked jurisdiction to hear and decide on the case the IEBC feels should be handled by the Supreme Court.

But Justice Majanja ruled that the High Court retains primary jurisdiction to interpret the Constitution.