Health Cabinet Secretary Aden Duale has challenged a proposal by a coalition led by former Chief Justice David Maraga to scrap the national presidential tallying centre at Bomas of Kenya ahead of the 2027 General Election.
Duale said the Constitution and the Elections Act provide for the Independent Electoral and Boundaries Commission (IEBC) to tally and verify presidential results at the national level, dismissing the coalition's interpretation of the law as “pure sophistry”.
The former Defence Cabinet Secretary made the remarks in response to the People’s Coalition on Electoral Reforms, led by Maraga, which has called for the abolition of Bomas as the national tallying centre or the establishment of any other national venue for the exercise.
The coalition argues that the Constitution does not give the IEBC power to retally or re-verify presidential results already declared at polling stations and constituency tallying centres. It has cited Articles 86 and 138, arguing that results declared at polling stations should be final.
Duale, however, said the coalition had overlooked the Elections Act, which gives effect to the constitutional provisions governing the management and declaration of presidential elections.
“Article 88(5) of the Constitution obligates the IEBC to perform its functions in accordance with the Constitution and national legislation which is the Elections Act,” Duale said.
He also cited Article 138(3), which provides for the procedure to be followed in a presidential election in the manner prescribed by an Act of Parliament.
Article 138(3)(c) states that after votes are counted at polling stations, the IEBC shall “tally and verify the count and declare the result”. Article 138(10), meanwhile, provides for the IEBC chairperson to declare the presidential election result.
Duale further pointed to the provisions governing the transmission of results from polling stations to constituency and national tallying centres, arguing that the national stage is part of the process established by law.
“Articles 88(5) and 138(3)(b) of the Constitution as read with section 39 of the Elections Act provides for the procedure for the determination and declaration of results and expressly stipulates that the IEBC shall transmit and deliver results from a polling station to the constituency tallying centre and to the national tallying centre,” he said.
The dispute centres on the extent of the IEBC's role after votes have been counted and results declared at polling stations and constituency tallying centres.
The Supreme Court has previously considered the commission's verification role in presidential elections. In its 2017 presidential election proceedings, the court said the IEBC's duty to verify results runs from the polling station through the constituency level to the national tallying centre.
The court also distinguished between the role of the IEBC as a commission and that of its chairperson. It held that tallying and verification at the national tallying centre is the responsibility of the commission, while the chairperson has the specific responsibility of declaring the presidential result.
In a separate 2017 case, the Court of Appeal held that the IEBC, upon receiving electronically transmitted presidential results from polling stations, was required to tally and verify the results at the national tallying centre without interfering with the figures contained in the constituency returns. The court said the chairperson's role came at the end of the process, when the presidential result was declared.
The Maraga-led coalition has proposed a different approach, under which presidential results would be handled at constituency level, with the IEBC chairperson declaring the final outcome from constituency returns. The coalition has also called for other electoral reforms, including an audit of the voter register and biometric data, early testing of election technology and greater scrutiny of ballot-paper printing.
The disagreement over Bomas comes as political parties, candidates and electoral reform groups turn their attention to changes to the electoral system ahead of the 2027 elections.
Duale said the existing constitutional and statutory framework was clear.
“From the foregoing, the Constitution and the Elections Act are still speaking loudly on matters elections notwithstanding the attempt at creating unnecessary arguments,” he said.
