There is a brewing issue that may force the ongoing Kenyan elections go into the runoff stage.
As of last night, based on the provisional results that were on all TV screens, the no. of rejected votes were upward of 300,000. This is a disturbingly huge amount and if it was attributed to a candidate, he/she would be the 3rd highest in the presidential running. The debate is on what to do with this category of votes. Both of the front runners are nervous that it will erode their percentages in the total pool and thus ruin their shots at winning in the first round. Not including them in the final tally for cast votes would make the chances that a first round win is possible.
Here is a post I found by a good friend on Facebook breaking down what the legal situation is like.
50 +1 OF THE CAST VOTES MYSTERY
The constitution provides that that a candidate shall be declared elected as president if the candidate receives more than half of all the votes cast in the election and at least twenty five per cent of the votes cast in each of more than half of the counties. Either Uhuru or Raila requires 50 + 1 and at least 25% of all votes cast in 24 counties. Whereas there is no contention as to whether both have met the county votes requirements, there is an emerging debate as to whether the requirement on the 50+1 of the votes cast includes the spoilt votes and/or the rejected votes.
A ballot box is defined as a transparent container with a slot on the top sufficient to accept a ballot paper in an election or in a referendum but which prevents access to the votes cast until the closing of the voting period. The law further stipulates that the ballot boxes should be fairly transparent or translucent and be colour coded prominently and distinctively to identify the respective elective post and shall correspond with the colour of the ballot paper for that elective post.
IEBC is required to ensure that that the voting method/ system is simple, accurate, verifiable, secure, accountable and transparent. IEBC is also required under the constitution to ensure that the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station and that the results from the polling stations are openly and accurately collated(emphasis mine) and promptly announced by the returning officer and to ensure that appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safe keeping of election materials. The word collate means to compare critically, sort, analyse. I do not think that IEBC has exhausted its mandate on collation of cast votes in relation to the rejected votes.
Votes cast
The phrase votes cast has not been defined in the Kenyan law. However, to cast one’s vote means to place one’s ballot paper in the ballot box. A ballot paper means a paper used to record the choice made by a vote and shall include an electronic version of a ballot paper or its equivalent for purposes of electronic voting.
Is a rejected vote a cast vote?
We did not vote electronically, so the votes or choices were expressed in the ballot papers and voting was completed the moment the papers were placed in the ballot boxes. If the rejected votes were cast in ballot boxes, then they form part of the votes cast. Noting that to cast a vote means to place a ballot paper in a ballot box by a voter as an expression of choice, my view is that rejected votes are votes cast and should be factored in the 50+1 requirement.
Rejected votes and valid votes
Under the elections regulations, at the counting of votes at an elections, a ballot paper or a vote can only be rejected for the following reasons:-
a) For the reason that it does not bear the security features determined by IEBC e.g serial number or stamp, or size, or marks etc;
b) Where a person has voted for more than one person in the same ballot paper;
c) Where something is written or so marked in the ballot paper which makes it uncertain for whom the vote has been cast;
d) A vote which bears a serial number different from the serial number of the respective polling station and which cannot be verified from the counterfoil of ballot papers used at that polling station; or
e) A ballot paper which is unmarked.
There is no requirement that these ballots should be put in the right ballot box for them to count. Further, IEBC is given the power to interpret the intention of voters. A ballot paper which is not marked in the right place but clearly expresses the intention of the voter should not be rejected. For example which someone puts a mark which runs out of the box in the paper but does not run to another person’s name is valid. Even if a person puts a tick and X and even writes a name that does not necessarily identify the voter against one person only, that vote is valid. Accordingly, out of the cast votes, a valid vote is one which bears a clear intention of expression of choice in favour of only one candidate.
Unsolicited advice to IEBC
In my view, the votes placed in the wrong ballot papers should not be rejected. They were validly cast votes. My advice is that IEBC should sort all the rejected votes under all categories to ensure that the valid votes placed in any ballot paper is sorted, placed in the right category and counted. If 350,000ballots were erroneously placed in the presidential ballot box, if this is multiplied by the 6 categories for argument’s sake, we end up with an alarming 2,100,000 ballots or choices which were cast in the wrong ballot box. I think IEBC should take the responsibility of sorting out all the rejected votes and include them in the final tallies. This could change the fortunes of many candidates. IEBC should exhaust its mandate in law and sort out the good votes in the wrong ballots and add them to the provisional results.
Josephine Kogweno
Nairobi based Lawyer
Ahmednasir Abdullahi of the Nairobi Law Monthly fame is breathing fire and brimstone as a result of this debacle. I fail to understand though why he is quoting American laws, we ain’t American and any precedent set would not necessarily apply here right?
I am watching this closely and the outcome or precedent set here should be history making.
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