Busia Senator Okiya Omtatah has moved to court seeking declarations that the Independent Electoral and Boundaries Commission (IEBC) has been acting unconstitutionally by establishing and operating a National Tallying Centre with powers to verify, alter, or re-tally presidential election results. The Senator argues that the mandate is not provided for in the Constitution.

In the petition, Omtatah argues that the provisions of Articles 86 and 138 of the Constitution outline a straightforward, transparent, and final process for counting, tallying, and declaring presidential election results at the constituency level, leaving no room for further verification at the national stage.

Omtatah argues that the Constitution requires that votes be counted at polling stations, collated at the constituency, and the results declared promptly and openly by constituency returning officers whose announcements are intended to be final.

The activist, turned Senator, says that Section 39 of the Elections Act, which introduced national-level verification and tallying, contradicts these constitutional provisions and has created room for confusion, duplication, and possible manipulation.

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He argues that the law passed by Parliament and the regulations crafted by the IEBC have unlawfully expanded the Commission’s powers by creating a National Tallying Centre that assumes a role the Constitution does not envisage.

".... this practice has repeatedly caused disputes in the 2013, 2017, and 2022 elections," reads court papers.

Omtatah further challenges provisions allowing the IEBC Chairperson to declare presidential results before receiving all constituency results, saying it reinforces the principle that constituency results are final, and that national verification is therefore unnecessary and unconstitutional.

The petition also faults the Attorney General for failing to advise the government on the unconstitutionality of these electoral practices, while Parliament is accused of passing legislation that undermines constitutional safeguards intended to protect electoral integrity.

The High Court has been asked to interpret the constitutionality of Section 39 of the Elections Act and determine whether IEBC’s conduct at the National Tallying Centre violates the constitutional scheme for presidential elections.