Why Bomas can't be an Appellate Court for 290 constituencies

The debate following the High Court judgment on presidential election tallying risks being distorted by headlines suggesting that the court has simply “upheld Bomas.” That formulation conceals the much more important constitutional question.

The issue is not the building. The issue is power. Kenyans cast presidential votes at polling stations. They count the votes there, openly, before candidates’ agents, observers, and election officials. Those results move through the electoral chain and are collated into constituency presidential results.

According to reports of the judgment, results declared and certified by Constituency Returning Officers are final and cannot be altered at the national level. It means Bomas, or whatever venue IEBC chooses, cannot become an appellate court sitting above the 290 Constituency Returning Officers.

It raises the question of what the intended appeal should ask the Court of Appeal to answer. What exactly does verification at the national level mean? If verification means confirming that the 290 certified constituency results received nationally are authentic and that figures entered into the national computation correspond with those declarations, there is little controversy. That is verification in aid of aggregation.

But if verification is interpreted as authority for the Commission sitting nationally to reopen, vary, cancel, correct, or substitute constituency-declared results, or to retally Forms 34As, constitutional tension arises. How can a result be final at constituency level and still remain alterable nationally?

The national exercise has a purpose. Kenya elects one President nationally. Someone must add certified constituency results and determine whether a candidate has satisfied Article 138(4), which requires more than half of all votes cast and at least 25 per cent of votes cast in each of at least half of Kenya’s counties.

But that exercise is aggregation. Adding 290 certified results does not require reopening ballot boxes or conducting another election at Bomas. Nor should verification become an elastic expression through which national officials acquire powers the Constitution placed elsewhere.

Suppose a Constituency Returning Officer certifies Candidate A with 50,000 votes and Candidate B with 40,000. When that constituency enters national computation, the figures should remain 50,000 and 40,000. National officials may verify the declaration and accurate entry into the aggregate. They should not produce 48,000 and 42,000 and call that verification.

Previous elections explain why precision matters. The 2017 presidential election was annulled after litigation concerning transmission, verification and compliance with constitutional and statutory requirements. In 2022, the declaration at Bomas followed a public rupture within the Commission, with four commissioners distancing themselves from the final phase.

Those episodes do not determine the legality of a National Tallying Centre. But they show the danger of concentrating uncertainty at the final stage of an election. Kenyans should not spend days staring at one room in Nairobi wondering what is happening to results already counted and declared countrywide.

Technology and transparency make a better approach possible. Once constituency results are certified, they should be published immediately on an accessible public portal. Candidates, parties, journalists, observers, universities, civil society and ordinary citizens should download the same 290 results.

Then let everybody do the arithmetic. If IEBC obtains 7,500,000 votes for Candidate A, every Kenyan with the 290 certified results should obtain exactly 7,500,000. There should be no secret arithmetic, no mysterious adjustment, and no electoral black box between constituency declaration and presidential declaration.

That is why the United Alternative Government has decided to appeal. The appeal should not become an argument about a hall called Bomas. It should concern the limits of national power.

The Court of Appeal should clarify whether IEBC’s national function is confined to receiving constituency declarations, verifying authenticity and correspondence, aggregating the 290 results, determining whether Article 138(4) has been satisfied and enabling the Chairperson to make the declaration contemplated by Article 138(10). That interpretation reconciles national aggregation with constituency finality.

The jurisprudence associated with Maina Kiai remains central because it protects the integrity and finality of results declared at prescribed lower levels. The High Court’s reported conclusion that constituency results cannot be altered nationally reinforces that principle.

The controversy is not about whether Bomas survives. Bomas is merely a building. The Constitution is concerned with authority. Kenya needs an election architecture in which every number can be traced backwards, from the presidential declaration to the national aggregate, the 290 constituency declarations and the polling stations where citizens voted. That chain must never run in the opposite direction.

Count at the polling station. Collate and declare at the constituency. Publish certified results. Aggregate nationally. Determine the constitutional thresholds. Then let the Chairperson declare. The appeal can settle where verification ends and alteration begins. Bomas may calculate the national answer. It must never rewrite the 290 constituency answers.