How United Opposition’s electoral law change push could be a double-edged sword

The United Opposition’s petition seeking to redefine Kenya’s presidential results management framework while seeking to fix meddling loopholes risks boomeranging on the petitioners.

The move carries risks that could boomerang on the very coalition pushing for reform, particularly on the push to remove the national tallying at Bomas.

The group, represented by Gitobu Imanyara and Company Advocates, filed the petition before the Constitutional and Human Rights Division.

It is asking the court to declare that the IEBC has consistently violated the Constitution by centralising the verification, collation and declaration of presidential results at the National Tallying Centre.

The leaders argue that IEBC's practice of subjecting constituency-level presidential results to further scrutiny at the national level is extra-constitutional and has been the source of distrust, litigation and political instability since 2013.

They maintain that the law requires that presidential results be tallied and verified at the polling station and constituency levels, and that the national tallying centre's role be limited to aggregating the final figures already declared by constituency returning officers.

Effectively, the push limits the national tallying centre — usually based at Bomas of Kenya — to a passive aggregation role, and thus ends the “extra-constitutional manipulation”.

However, legal experts and the leadership at the commission warn this may expose the Opposition to unintended consequences.

IEBC commissioner Ann Nderitu has directly responded to the opposition’s attempt to weaken the role of the National Tallying Centre, saying Bomas is a necessary verification hub.

“Results must be verifiable. You can’t announce results without verifying. Form 34A is what is translated to form 34B. Nothing changes at Bomas,” she said.

“If you tell the returning officers at the national tallying centre that they can’t authenticate results as per 34A, then what are you saying?”

The former Registrar of Political Parties said she had been at Bomas in the last four elections and can attest to the importance of the tallying centre at the national level.

“Even when there are discrepancies, there is a form that you enter for petition purposes. Verification is checking form 34A against Form 34B and making Form 34C, essentially consolidation of results,” she said.

“If consolidation is wrong, how do you know as a returning officer?”

Even with the opposition petition, Nderitu cautioned that the “reality of what exactly happens” needs to be considered.

“For instance, who shall decide the 25 counties and secondly the 50 per cent [threshold for presidential winner], since these require national aggregation? Will the constituency returning officer do that?”

Nderitu’s comments underscore a looming institutional clash, which would further complicate the already complex electoral process.

The petition would appear as a follow-up on previous remarks by opposition leaders, who have warned of deadly consequences in the event the 2027 election is rigged.

In May, Gachagua said in an interview that if the 2027 General Election is rigged, the ensuing chaos would make the 2007 post-election violence "look like a Christmas party”.

And last month, he called for the “devolution of presidential tallying” to eliminate what he described as “monkey business” at Bomas.

However, legal minds have called for caution.

High Court advocate Willis Otieno argues that the Constitution already places sovereignty at the polling station.

The real threat to election integrity is political interference, not the existence of a national tallying centre, he says.

“The polling station is the primary point of sovereignty. That’s where the voter’s will crystallises and becomes law,” Otieno said.

“So while Gachagua’s call to ‘devolve tallying’ may sound reformist, it actually ignores what the Constitution already safeguards.”

The lawyer, who participated in the 2022 presidential election petition at the Supreme Court, advised that what Kenya needs is integrity in transmission, not another bureaucratic layer.

“The ‘monkey business’ doesn’t happen because of Bomas. It happens when political actors try to edit final results that are already constitutionally sealed”.

Former LSK president Eric Theuri says all a serious presidential candidate needs to do is have competent agents in every polling station because the result at the polling station is not capable of being amended.

“The IEBC does only basic arithmetic, which any other person can do as long as they have the form 34As,” he said.

“There is no room to amend even one form 34A. The IEBC chairperson only announces what Kenyans have stated in their polling stations as expressed in form 34A.”

He urged leaders to read the Maina Kiai decision together with the 2017 presidential election petition judgment.

So what is the remedy? Theuri called for vigilance, saying candidates should have at least two agents in each polling station.

“Those agents should only sign the form 34A if it is accurate. They should also take pictures of the form for records and to ensure no monkey business.”