Monday, August 4, 2008

WHY ELECTORAL COMMISSION WAS ORDERED TO DECLARE KAMUKUNJI RESULTS

(This report was also published in the Daily Nation newspaper (page 14 column 1) on August 4, 2008)

By Michael Murungi
August 2008
Republic v The Returning Officer, Kamukunji Constitutency & another [2008] eKLR
(www.kenyalaw.org)
High Court at Nairobi
Justices J.G. Nyamu and R. Wendoh
July 29, 2008

The High Court has ruled that the Electoral Commission of Kenya (the ECK) acted in abuse of its powers when it postponed or nullified the Parliamentary election results for Kamukunji Constituency in Nairobi during the General Elections held on December 27, 2007. Judges J. Nyamu and R. Wendoh made the ruling in a judicial review application filed by Simon Ng’ang’a Mbugua, who was one of the candidates in the election and who claimed to have been on the verge of winning the election before the ECK called off the vote tallying exercise ostensibly due to chaos in the counting hall.

The Court clarified that the law does not empower the ECK to cancel an election which has taken place. The ECK can only postpone an election which has not started for specific reasons provided by law and to order the cancellation, postponement or nullification of election results is the sole function of an Election Court.

Mbugua had filed his application for judicial review on January 17, 2008 asking the court to issue an order compelling the returning officer for the election and the ECK to discharge their legal duty to tally the results and to publicly declare and gazette the winner of the election. He asked for an order restraining the Commission from undertaking repeat elections for the constituency.

Mbugua had told the court that voting in Kamukunji had been peaceful and after all the votes had been counted, results were publicly announced and declarations of results prepared in the prescribed Form 16A of the National Assembly and Presidential Elections Act. After the announcement of results by the Presiding Officers in all the constituency’s polling stations, the forms were forwarded to the Returning Officer at Shauri Moyo Social Hall for tallying of the total Constituency results. This exercise was to take place mainly December 28, 2007. On the evening of same day, Mbugua further told the Court, the Returning Officer announced “provisional results” showing him as the winner. On the following day, a local daily newspaper reported that he had won the election with a tally of 9,524 votes. Later, as the results from the last polling stations were being tallied, Mbugua claimed that agents of the losing candidates disrupted the exercise forcing the police to evacuate the tallying hall. Mbugua faulted the Returning Officer for failing to resume the tallying even after calm returned to the hall. Instead, she could not be traced and the Electoral Commission sitting at the KICC later declared that the Kamukunji elections would be repeated. This decision, Mbugua submitted, was illegal because only the High Court had the power to cancel or nullify the results and because the Returning Officer was legaly bound to reconvene and complete the tallying exercise.

The application was opposed by the ECK, the Returning Officer and a number of the other parliamentary candidates who had joined the dispute as interested parties. The substance of the ECK’s defence was that by the time the vote tallying exercise was violently disrupted, the results of 22 polling stations had not been tallied and documents for three ballot boxes had been destroyed. In these circumstances, the ECK argued, the final results could not be tallied or announced, and this prompted the ECK to exercise the power granted to it by regulation 25A of the National Assembly and Presidential Election Regulations “to postpone, annul, start or restart elections”.

The High Court observed that the ECK had not offered any explanation why some of the results had gone missing at the tallying stage when they had been received from the presiding officers from all the polling stations. Further, regulations 25, 25A and section 34 of the National Assembly and Presidential Elections Act did not empower the ECK to cancel elections which had taken place. The law only empowered the ECK to postpone an election which had not started for the specific reasons spelt out in the Regulations. In canceling or postponing the elections, the ECK was exercising a power which is only given to an election court. “The objectives of the Electoral Law is to do justice to all the parties” said the Judges. “It is unacceptable that because some results were missing which ought to have been in the possession of the ECK and the returning officer and which had been signed for by the candidates or their agents at each polling station, that should prevent the announcement of the overall results”. This point was supported by the fact that the returning officer had admitted that the missing results could be retrieved from the secured ballot boxes and that they would not have made any difference to the overall result. Moreover, the returning officer had announced Mbugua as the winner during the tallying stage. The High Court reiterated that the issue of the missing ballot boxes and their effect on the overall result would have been a matter for an election court yet no such court could be constituted because the final result had not been announced.

In the High Court’s view, it would have been more consistent with the proper management of elections for the ECK to instruct the Returning Officer to complete the vote tallying rather than to “give in to the forces of anarchy and chaos”. Even after calm had returned to the country, the ECK could have applied to the Court to lift any order staying the tallying exercise and to proceed with and complete the exercise.

The Judges reiterated that they were not sitting as an election court considering an election petition but rather as a judicial review court asked to review the decision of an administrative body, i.e. the ECK. More particularly, they were sitting to determine whether the ECK had failed to discharge the duty placed upon it by law. It having been established that the ECK had failed in its duty, it was the Court’s duty to order the ECK to comply with the law and also to prohibit it from exercising a power that it did not have. ECK’s order cancelling, nullifying or postponing the Kamukunji elections was therefore quashed and an order was issued compelling it to tally the results for each candidate and to publicly declare and gazette the winning candidate.

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