The electoral commission has defended provisional presidential results and rejected a demand by the National Super Alliance (Nasa) to stop transmitting them.
Nasa’s request was made at a meeting with top officers and members of IEBC as President Uhuru Kenyatta built a lead of 1.2 million votes over Raila Odinga.
“There was a request that we halt the display of the results as they are at this point but as a commission we decided that as part of our work, as part of our commitment to the voters, the Kenyan people, transparency and accountability are part of them and that’s why we have decided as a commission that we will continue displaying the results so that you the media and the Kenyan people can get the results,” said Consolata Maina, the commission’s vice chairman.
She said no candidate or party had contested the results as displayed.
“We believe that by displaying the results, we have been doing well to enhance transparency and accountability in the electoral process consistent with the commitment that the commission has made to the Kenyan people,” said Ms Maina.
She said the approach of displaying the results is based on the decision by the Court of Appeal that the results announced at polling stations would be final.
But at a press conference a few minutes later, Mr Odinga’s chief agent Musalia Mudavadi, and Nasa lawyer James Orengo said the results had no legal basis as they had not been accompanied by the required documentation as per the law.
“The transmission of the presidential results is not in the manner prescribed by law,” said Mr Mudavadi.
“The commission has committed fraud by transmitting the results without Form 34A,”
“Where are these results coming from and how are they tallying or adding without these forms?” he said.
He said the commission had promised to hand them the scanned copies within 10 minutes of the end of their meeting but that had not happened.
They also questioned the apparent instability of the transmission system.
The commission also decided that in case of discrepancy between the results transmitted using the Kenya Integrated Election Management System (Kiems) kit and the actual form filled at the polling station, the result on the form would prevail.
Ms Maina said the commission had agreed to allow presidential candidates special access to the form.
“The law requires that we get the Form 34B from each of the Returning Officers before we are able to declare the result,” she said.
“The declaration of the results will be based on the Form 34B that we will get from the returning officers.”
She said presiding officers were transmitting the scanned results from Form 34A from polling stations.
Jubilee Party Secretary-General Raphael Tuju said if the opposition has noticed any anomaly on the transmitted results and those in form 34A then they can challenge that in court.
“Nasa cannot have their cake and eat it. They went to court demanding that results announced at the constituency level should be final and their wish was granted and that is what is happening, why then should they now turn back on their own proposal,” said Mr Tuju
In the meeting, the Nation learnt that Nasa wanted the electoral commission to stop relaying the results as texted in by the returning officers, saying it was causing tension.
This proposal was rejected by IEBC, who instead argued that stopping the results would even cause more anxiety.
The opposition also complained that the results relayed did not tally with those in form 34A.
The meeting was attended by Jubilee Party Chief Agent Davis Chirchir, his deputy Winnie Guchu and lawyer Fred Ngatia.
The opposition had its Chief Agent Musalia Mudavadi, his deputy James Orengo and Executive Director, Nasa campaign committee, Kibisu Kabatesi.
All IEBC commissioners together with CEO Ezra Chiloba were also present in the midnight meeting that lasted for only 30minutes before the commission did its final press briefing of day one.
By 1.30am, the IEBC had received results from 28,172 out of the 40,883 polling stations when the commission addressed the last of its four press briefings.
At 2am, the polling stations had jumped to 29,209, a rising figure that Mr Chiloba had 20 minutes earlier said would keep rising.
“The KIEMS kits have been pushing in a lot of data. At that time, there was too much data from the field, and the team has been trying to try and fix the refresher tool,” said Mr Chiloba.
“We are comfortable that with time, that will be a non-issue.”
Mr Chiloba said the 30,000 polling stations with 3G coverage would be done in about “one hour, two hours or so”.
However, a longer wait was expected for the 11, 155 polling stations with unstable 3G network to submit their results.
The 11, 155 polling stations clerks had been asked to move to the places where there is enough network, or to the constituency and county tallying centers that have been given satellite coverage.
And on the rejected votes, which at 2am stood at 282, 624, Mr Chiloba said there were those that had not been allocated to any candidate.
The Supreme Court in 2013 ruled that rejected votes will no longer be part of the tally to determine whether a leading candidate has hit the 50 per cent plus one vote mark to be declared validly elected president.
Meanwhile, Ms Bucha revealed that scanned declaration forms would be availed to the presidential agents that are at Bomas to ascertain their authenticity.
She, however, insisted that the continued live updates of the results in the portal would go on.
“If there is any discrepancy between the results as sent by KIEMS with that of the scanned declaration forms, the scanned form shall take precedence and shall be displayed to the public as per the law,” said Ms Bucha.
Commissioner Dr Roselyne Akombe said: “We have decided as a commission that for transparency, we will maintain the updates.”
Dr Akombe said that so far, no one had raised issue with the text results being displayed at the IEBC website against those that have been sent from the various polling stations.