LEGAL ASPECTS ELECTORAL PROCESS CONTINUED

Honourable Mutula Kilonzo, SC was right to observe that the legal process must be observed to the letter.

Anyway, it is now becoming clear to me that neither the ECK officials. candidates nor their agents, including some lawyers of experience, have familiarised themselves with the provisions of Presidential and Parliamentary Elections Rules which govern the conduct of elections. If they had, some of these problems would have been avoided. The rules provide, among others, the following;

• A counting agent has the right to seek a recount at the polling station before the Presiding Officer announces the results at the Polling Station

• A counting agent has the right to obtain a copy of the polling results after the poll has been announced at the station.

• The Presiding Officer must supply a copy of the result sheet to each agent and post a copy of the results on a prominent part of the building where the public has access.

• The tallying sheet must be signed by each agent, failing which, the presiding officer should record the reasons why the the agent has refused to sign.
• Each candidate is granted a right to demand a recount or challenge the result within twenty four (24) hours after counting and tallying by the Returning Officer. The candidate may petition the ECK directly which is then bound to arrange for a recount or tally but must decide the candidates petition within 48 hours after receipt of the petition.

• A Tallying Centre is not a counting centre in the sense that ballots are not re-counted but the results of all the Polling Centres in the Constituency are tallied. That us why it is more important for the agents to secure the Polling result sheets countersigned by all the agents. While there is a danger that ballots and ballot boxes may be introduced after the ballots have been counted, once the Polling officers and agents have done their work and secured the result sheets, these new material can easily be ignored if it does not conform to actual tallies.

• Once the elections have been declare by the Returning Officer, in the absence of a challenge contemplated above, the RO is functus officio and the election result cannot be re-opened except through an election petition.
• The only was to challenge an election or the result of an election is through and election petition filed in the manner provided by the National Assembly and Presidential Elections Act. The election process cannot be stopped or stayed in any manner.
  

When the rules were amended, it was contemplated that the polling station was to be the focal point of all matter concerning counting. The candidates agents would then assume an important position in ensuring that all the votes cast were valid and properly counted. Furthermore, this would reduce the inherent problems in counting a large number of ballots from the whole constituency. Notwithstanding allegations of rigging, I think the party's must take some responsibility for failure to invoke the proper process. Writing letters or press statements while the ECK is delivering the results is neither appropriate nor proper. I wonder why parties have legal advisers.

While I understand that the fact that there has been an increase in the number of voters and candidates, they has been clearly a failure of candidates agents and some ECK officials to take their work seriously. Similarly, the ECK has failed to clearly inform or educate the public on the proper legal process that is applicable to the situation such as one we face.