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Sovereign Power Transfer to President Per Kenya Constitution

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Kenya Constitution, “1. (1) “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.” A Supreme Court ruling of four to two read, “A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.” Kenya constitution through the Supreme Court nullified the elections. The constitution requires the process repeated in 60 days. Below, the constitutional laws and how Independent Electoral and Boundaries Commission can ensure the election is done in accordance with Kenya Constitution and legislated laws.

Kenya Constitution 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.

The election of the President originates from Kenya Constitution article 1. The people create an office of President and then transfer their sovereign power to be exercised by a President through a democratic election. Before August 8th, 2017 about 19.6 million Kenyans were registered to be part of the democratic process of exercising their sovereign power. On August 8th, 2017 about 15 million exercised their power by waking up and going to the polling station and voting per system established by Kenya constitution 86.  

Kenya Constitution 86. At every election, the Independent Electoral and Boundaries Commission shall ensure that— 

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; 

The Independent Electoral and Boundaries Commission (IEBC) on August 8th, 2017 had 40,883 polling stations that opened from 6am to 5pm that offered the 19.6 registered voters their right to exercise their power. The chance to vote through a simple method that required marking a ballot paper. Over 15 million ballots were marked and cast inside boxes that were secure and were transparent.  

(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;

IEBC following the end of the voting openly counted the votes cast and accurately collated in a document 34A as required by Election Act that is signed also by agents of the candidates. The presiding officer promptly announced the result. 

The Election act requires that the results once announced also become available to the public through the National tallying center. This is where the IEBC was not 100% perfect. This time around the systems for IEBC can achieve a flawless transfer and have the first results tally. 

Based on the fact that once results announced candidates through their agents get the results and the agents will send those results to their tallying centers and they do not have a legal procedure; the IEBC should be ready to ensure that the sovereign power is not denied by the person who has access to the results through the 40,883 agents.   

(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and

The 34As were taken to the constituency polling center and collated to a 34B form. This is the manual system of accurately recording the votes. The returning officers of the 291 constituencies, then submit a 34B each to the Chairman of the IEBC as the returning officer at the national level.

In a 100% accurate result the 40,883, 34As collated at the National Tallying center based on (b) and the 291 collated 34Bs derived from the 40,883 polling stations 34As should have had identical results.    

(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Ballots should be sealed and stored in a safe place as required by law. The ruling on the validity of the results was mainly based on the verification system. This time around the IEBC should be ready to show and produce the election materials as required to show there was no malpractice and where malpractice occured the IEBC should show the effect of the malpractice to the total results.   

Elections by October 31st 2017. 

IEBC should prepare to do what they did:

  1. Offer 40,883 polling stations.
  2. Count results and have 34A generated and signed to generate the 40,883 34A’s. They should transmit the results generated and display in IEBC portal in real time.
  3. Have 34B created from the 34A’s and this electronically submitted and displayed in the electronic portal. 
  4. Kenyans and media can also be able to tally the results as generated through the IEBC public portal that uploads the 34A. If a 34A is questioned then the presiding officer would be answerable. The agents as witnesses. 

IEBC can strengthen the system of election and ensure the sovereign power is transferred to the person who shall be President of Kenya using Kenya Constitution.  

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