Mr. Isaack Hassan

Chairman

Independent Elections and Boundaries  Commission

University Way, Anniversary Towers,  6th Floor,

P.O. Box 45371-00100

Nairobi.

 

Date: 7th March 2012

 

Dear Sir,

 

MEMORANDUM: ACCOUNTABILITY FOR  AND TRANSPARENCY OF RESULTS VERIFICATION AND PREMATURE CERTIFICATION  AND ANNOUNCEMENT OF ALLEGED OFFICIAL RESULTS WITHOUT PRIMARY DOCUMENTATION

(FORM 34)

 

Under the law, when polling stations close, ballots  are counted, verified by presiding officers and political party agents  and the results then posted publicly on the door of the polling stream,  thereafter transmitted electronically for the announcement of provisional  results by the Independent Electoral and Boundaries Commission (IEBC)  at the national elections tallying centre in Nairobi.  Subsequently,  these results are verified and made official based on the receipt of  hard documentation from the constituency returning officers and its  verification by the IEBC and political party agents.

Results were counted at the polling stations.  The  presidential results were counted first. At each polling station five  original copies of Form 34 were to be signed by presiding officers and  political party agents.  One original was to be posted on the door to  the polling station counting area and thus made public for all Kenyans.  This should have been done as soon as counting ended on the evening  of 4th of March 2013 and 5th of March 2013.

The presidential results should have been counted  and posted publicly at each polling stream on Form 34 before the counting  of the votes for National Assembly, Governor, Senator, County Representative  and Women’s Representative—thus there should have been no controversy  about the Form 34 being openly available to the public before results  were announced.

The results were then meant to be transmitted electronically  to Nairobi for the announcement and posting of provisional results but  the IEBC electronic transmission system failed.  The causes and nature  of this failure have not been disclosed to the public—despite this  transmission being required by law and being the first measure to guarantee  securing of the integrity of the vote.

With the failure of the legally mandated system for  the electronic transmission of preliminary results, the vote count from  each of the polling stations must be made publicly available immediately.

Similarly, the derivative Form 36 from each constituency  tallying centre must be publicly available.  However, because  it is a derivative document totaling the numbers from the constituency  polling stations, it cannot be considered a substitute for these original  forms.

Further, given systemic anomalies in Form 36 across  the country noted by political party agents and observers it is imperative  that these anomalies be addressed by reference to the original forms.

Because of this failure, the IEBC should follow all  other required procedures for verification of the hard documentation—including  allowing full and transparent access to the verification process by  political party agents. This is the import and value of public participation  which is a cardinal principle in the Constitution.

Yet, political party agents were expelled from the  IEBC audit and verification centre, creating an unlawful climate of  non-participation and lack of transparency as per the Constitution of  Kenya, 2010.The IEBC has continued to then unlawfully announce final  results based on Form 36 signed by agents of only one political party.

Based on this, the IEBC has failed, under Article  81(e) to administer the elections in an accurate, accountable and impartial  manner—in line with its guiding constitutional principles.

We therefore demand:

  • That the IEBC stop announcing   results until the concerns raised above can be addressed and a credible,   transparent and fair process be instituted;
  • That the IEBC publicly explain   the causes and nature of the failure of the electronic transmission   system. Related to this, the IEBC should secure from the service providers the preservation of all transmissions   and the servers as they were at the time of the failure;
  • That Form 34 containing the vote count from each polling station be made   publicly available;
  • That the Form 36 from each constituency   tallying centre be made publicly available;
  • Given anomalies in Form 36, that   these discrepancies be addressed by reference to the original forms, which are Form 34.

 

Signed

Kenyans for Peace with Truth and  Justice (KPTJ)

c/o Africa Centre for Open Governance

P.O. Box 18157 – 00100

Nairobi

Kenya