The High Court has reaffirmed the Independent Electoral and Boundaries Commission's (IEBC) authority in the national tallying of presidential election results, dismissing a petition filed by Busia Senator Okiya Omtatah. The petition challenged the IEBC's role in the process, arguing that the Constitution assigns the final responsibility for tallying, verifying, and declaring presidential results to constituency returning officers. Omtatah sought a court order to prevent the IEBC from re-tallying or re-verifying results already announced at the constituency level.
In its ruling, the court upheld the provisions of the Elections Act and the Elections Regulations, which empower the IEBC to aggregate and verify presidential results at the national level. The judges emphasized that national tallying is crucial to determine whether a presidential candidate has met the constitutional threshold for election. According to Article 138(4) of the Constitution, a candidate must secure more than 50 percent of all votes cast nationally and at least 25 percent of the votes in more than half of the counties. The court noted that this requirement cannot be confirmed solely at the constituency or county level.
The court also addressed concerns about discrepancies between results declared at polling stations and those transmitted electronically. It ruled that in cases of such discrepancies, the results verified and declared at polling stations will prevail. This decision underscores the importance of transparency and accuracy in the electoral process, ensuring that the will of the voters is accurately reflected.
The judges rejected claims that national tallying constitutes unequal treatment and declined to nullify the challenged election laws. Instead, they urged Parliament to review and amend election laws ahead of the 2027 General Election. The court highlighted the need for electoral rules to be fair and to serve the public interest, suggesting that lawmakers should develop these rules without bias. In doing so, they referenced philosopher John Rawls’ “veil of ignorance” concept, which advocates for decision-making without knowledge of which political side would benefit.
This ruling is significant as it reinforces the IEBC's mandate and clarifies the legal framework governing the tallying of presidential election results in Kenya. It also sets a precedent for future electoral processes, ensuring that the national tallying mechanism remains a vital component in confirming the legitimacy of presidential elections. The decision is expected to influence ongoing discussions about electoral reforms in the country.
