Kenya High Court: Upholds National Presidential Tallying, Dismisses Omtatah Petition

• Kenya's High Court upheld the national aggregation and verification of presidential election results, dismissing a challenge by Senator Okiya Omtatah.
• The court affirmed the validity of Elections Act Section 39(1C) and Elections (General) Regulations 83(2), which govern national tallying.
• Judges ruled that national aggregation is essential to determine if a presidential candidate meets the constitutional threshold of votes.
• The ruling clarified that national tallying does not permit the IEBC to alter results declared at polling stations, where physical results take precedence in case of discrepancy.
• The High Court also recommended that Parliament review electoral laws before the 2027 General Election, advocating for legislation crafted without partisan bias.

The court, however, clarified that while national aggregation is permissible and necessary, it does not grant the Independent Electoral and Boundaries Commission (IEBC) the authority to unilaterally alter results officially declared at individual polling stations.

In a significant ruling delivered on September 22 in Nairobi, Kenya, the High Court has unequivocally upheld the process of national aggregation and verification for presidential election results. This decision effectively dismissed a legal challenge initiated by Busia Senator Okiya Omtatah, who had contested the legality and operational framework of the national tallying centre. The court's judgment specifically affirmed the validity of Section 39(1C) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations, both of which underpin the national-level aggregation and verification of presidential outcomes.

Senator Omtatah's petition centered on the argument that the Constitution vests primary and final responsibility for tallying, verifying, and declaring presidential results solely with constituency returning officers. He further sought court orders to prevent the Independent Electoral and Boundaries Commission (IEBC) from conducting any re-tallying or re-verification of presidential results once they had been declared at the constituency level. However, the High Court found these arguments unconvincing, paving the way for the continued practice of national consolidation of votes.

The High Court's rationale for upholding national tallying was rooted in the constitutional requirements for a presidential candidate to secure victory. Under Kenya's Article 138(4), a successful presidential candidate must not only garner more than half of all votes cast nationally but also achieve at least 25 percent of the votes cast in more than half of the country's counties. The judges determined that this unique two-tier constitutional threshold for presidential election could only be accurately established through a comprehensive national aggregation of results.

Describing the national exercise as a "necessary and rational corollary" of the Constitution's distinct electoral requirements, the court concluded that it was not an arbitrary burden. Furthermore, the court rejected claims that national tallying constituted discriminatory treatment, which would be contrary to Article 27 of the Constitution. The court, however, clarified that while national aggregation is permissible and necessary, it does not grant the Independent Electoral and Boundaries Commission (IEBC) the authority to unilaterally alter results officially declared at individual polling stations. In instances where discrepancies arise between electronically transmitted results and physical records, the result verified and declared at the polling station is to prevail.

Beyond the core issue of national tallying, the High Court also addressed other facets of Senator Omtatah's petition. The judges declined to strike down Sections 39(1C) and 39(1G) of the Elections Act and Regulation 83 in their entirety, noting that several aspects of the petition lacked sufficient evidentiary support. These unsubstantiated claims included allegations related to Article 35, ballot reconciliation procedures, government timelines, and certain elements of the Article 27 challenge. The court characterized these particular claims as proceeding "largely by way of general assertion and invocation of constitutional provisions without the requisite nexus to a demonstrated or imminent violation."

Looking ahead to the 2027 General Election, the court issued a significant recommendation, urging Parliament to undertake a comprehensive review of Kenya's electoral laws. In making this suggestion, the judges invoked the philosophical concept of the "veil of ignorance," associated with John Rawls. They advised lawmakers to craft electoral legislation without prior knowledge of which political actors or interests might ultimately benefit from such laws. This approach, according to the court, would foster the creation of electoral laws that genuinely serve the broader interests of all Kenyans, rather than catering to the "narrow, temporal and variable goals" of specific political entities. This ruling provides critical clarity on the legal framework for presidential election result aggregation in Kenya, confirming the constitutionality of national tallying while reinforcing the supremacy of polling station results, and sets a precedent for future electoral reforms.

This ruling provides critical clarity on the legal framework for presidential election result aggregation in Kenya, confirming the constitutionality of national tallying while reinforcing the supremacy of polling station results. Lawyers advising political parties, candidates, or electoral bodies must be aware of this precedent when preparing for future elections or litigating electoral disputes, particularly concerning the verification and declaration process.

Source: Original reporting via Kenyan media.