By Teddy J O Musiga
In the wake of the 2013 Kenyan presidential election, three private citizens filed a petition at the Supreme Court of Kenya challenging the inclusion of rejected votes in the final tally of the results of the presidential elections (Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others  KLR-SCK Petitions Nos 5, 3 & 4 of 2013 (Consolidated). Prior to filing the Petition, it was alleged and reported in the media that the Electoral commission had made a decision to include the rejected votes in the computation of the final presidential election results.
As at the time of filing the petition, it was alleged that there was an estimated total number of about 330,000 rejected votes and the number kept rising, hence the filing of the petition – principally to avert the fear that their inclusion in the final tally could jeopardise an outright victory for either of the two leading presidential candidates.
The petitioners contended that the decision of the electoral commission to include the rejected votes was in contravention of Article 138(4) of the Constitution of Kenya, 2010, as well as Rule 77(1) of the Elections (General) Regulations 2012. The Supreme Court agreed with their submissions and held that rejected votes should not count in the final tally of presidential election votes. They also held that the correct interpretation of Article 138(4) of the Constitution refers to only valid votes cast and does not include ballot papers or votes cast but are later rejected for non-compliance with the terms of the governing law and regulations.
Similarly, and fast forward following the 2017 Presidential elections, the question of either inclusion or exclusion of the rejected votes in the final computation of the winner presidential election became a major issue in court in Odinga & another v Independent Electoral and Boundaries Commission & 6 others  KLR-SCK Presidential Election Petition No. 1 of 2017. However, this time round, that application was made within the context of the main Petition filed by the Petitioners as opposed to the 2013 case where the question arose even before the declaration of the Presidential election winner by the Electoral Commission.
Notably, in 2017 the actual total number of rejected votes could not be clearly ascertained. On the one hand, the Petitioners alleged that the total number of rejected votes accounted to about 2.6% of all the total votes cast. On the other hand, the Respondents (particularly the electoral commission) alleged that the total number of rejected votes were 81,685 as declared in Form 34C, a percentage of 0.54% of the total votes cast. Curiously, the IEBC, in its submissions in court, averred that the variance between the actual number of rejected votes on Form 34C and the public portal (which the petitioners used) were as a result of human error and did not affect significantly the outcome of the election. And therefore following the precedent from the Supreme Court in 2013, they made a decision not to include them in the final computation of the presidential election winner.
Whichever the case, the petitioners argued that such numbers were still too high to be ignored and that they had an effect on the final results and outcome of the presidential election. In that regard, the petitioners urged the court to reconsider its 2013 findings on rejected votes to hold that rejected votes should be taken into account in the computation to determine the threshold under article 138(4) of the Constitution.
In rendering their decision, the Supreme Court held that rejected votes should not be included in the final computation of presidential election winners. Particularly, they held, “a rejected vote is a vote which is void, a vote that accords no advantage to any candidate; it cannot be used in the computation of determining the threshold of 50%+1. A purposive interpretation of Article 138(4) of the Constitution, in terms of Article 259 of the Constitution, leads to only one logical conclusion: that the phrase votes cast in article 138(4) means valid votes”. Consequently, the Supreme Court upheld the view in the 2013 Raila Odinga case. Effectively, both the 2013 and 2017 decision of the Supreme Court held that “rejected votes” do not matter and should not be included when determining computations for presidential election winners.
As a result of both decisions, it has become doubtful how to treat rejected votes in Kenya. This article argues that both decisions took a narrow approach in their interpretations. The problem with holding that votes cast only refers to the valid votes cast springs from the fact that the Constitution of Kenya, 2010, in Article 138(4) expressly provides for “votes cast” and not “valid votes cast”. The mention of “valid votes cast is only found in Regulations 69(2) and 70 of the Elections (General) Regulations, 2012 which is a subsidiary legislation. It remains doubtful why the Supreme Court has twice chosen to interpret the meaning of “votes cast” by making reference to the meaning given to it in a subsidiary legislation as opposed to giving it the meaning provided for in the Constitution of Kenya, 2010. Notably, Article 138(4) of the Constitution provides for “votes cast”; which is a departure is from Section 5 (3) (f) of the repealed Constitution of Kenya, which provided that in computation of presidential election winners, only “valid votes” mattered.
A plain reading of Regulations 69(2) and 70 leads to the conclusion that they only refer to valid votes. They held that a voter is said to have cast his or her vote when the procedure under Regulations 69(2) and 70 of the Elections (General) Regulations, 2012 has been followed. This means that “upon receipt of the ballot paper, the voter proceeds to mark correctly, indicating his exact choice of the candidate he wishes to vote for, and then inserts that marked ballot paper into the respective ballot box for the election concerned”.
Both the 2013 and 2017 decisions further raise several assumptions – first, that the right to vote only refers to the valid votes cast to the exclusion of the rejected votes, stray votes and disputed votes and second that the rejected votes have no numerical value to the ultimate computation of all the votes cast in any given election.
World over, it is increasingly becoming accepted that rejected votes play a key role in electoral theory and should never be ignored. For instance, Canadian jurisprudence indicates that for an election to be annulled, the total number of rejected votes should be equal to or outnumber the winner’s plurality (Opitz v. Wrzesnewskyj, 2012). The numerical value of rejected votes cannot be ignored.
The United States treat rejected votes as, “residual votes”. Usually, residual votes are either “over-votes or under-votes”. Under-votes refer to a ballot in which a counting machine found no voter choice for a particular office. In such a case, the voter refrains from voting for any candidate. On the other hand, an over-vote is a ballot that is rejected by the counting machine because it indicates more than one choice for an office. In the 2004 presidential petition of Bush v Gore, 531 US (2000) the US Supreme Court held that sufficient “legal votes” existed among the under-votes cast thus making the outcome of the election in doubt. The court thereby ordered for a recount of all the remaining under-votes in Florida State.
Further, as Maina Wachira argues in his paper, “Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test”, rejected votes should count for two reasons. First, that from a rights perspective, the right to vote entails three elements: the right to make a choice from among the candidates on the ballot; the right to refuse to participate in the election by abstaining and the right to cast a protest vote by rejecting all the candidates on the ballot. He says that the right to cast a protest vote can be expressed by deliberately spoiling a ballot. Second, he argues, rejected votes should count because the Constitution, in article 138(4), sets high electoral thresholds for the presidential elections.
Therefore, from an electoral theory perspective, the right to vote also contemplates protest votes, and such votes should not be treated as an error as the Supreme Court has twice done. However, and admittedly, some rejected ballots could arise out of illiteracy levels of voters thereby meriting the argument that they be treated as an error rather than a protest. But, treating rejected votes as an error and thereby disregarding them in the computation of votes cast leads to two conceptual challenges. First, it puts the voter who goes to a polling station, queues and makes a decision to cast a protest vote against all the candidates on the ballot on the same pedestal as that citizen who, in spite of having the right to vote, chooses not to vote.
The second challenge is best captured by Maina Wachira’s analogy in his article (cited above). In the analogy, he gives an example of an electoral contest with 100 voters and two hugely unpopular candidates. The winner of the election outcome is expected to garner 50 plus one of all the votes cast. In the analogy, some 60% of the voters protest against both by “spoiling” their ballots. Candidate A, gets 35 votes and candidate B, gets five votes. If you include rejected votes, candidate A has only 35% of the votes cast and cannot win in the first round. If you exclude rejected votes, Candidate A wins with 87.5% of valid votes cast.
Another reason rejected votes should be counted stems from the legal distinction between spoilt ballots and rejected ballots. Under Rule 71 of the Elections (General) Regulations, 2012, a spoilt ballot paper is generally one that a voter has inadvertently spoiled by marking incorrectly; it is handed back to the election officers in exchange for a new blank ballot. The voter is then issued with a fresh ballot paper in place of the former. Such a ballot paper does not enter the voting box (it is not cast) and therefore cannot be counted.
On the other hand, under Rule 77(1), a rejected ballot refers to that ballot which either (a) lacks certain security features, (b) the voter has voted for more than one candidate, (c) the voter has left on it a writing or mark by which he/she may be identified or (d) the ballot remains unmarked or void for uncertainty. Regardless of the reason, a rejected ballot, therefore, is a cast vote, the result of a voter attending a polling station and placing a ballot in the ballot box. Such a ballot should be counted towards turnout, even if it doesn’t count towards a particular candidate.
The rationale for this reasoning is that the law contemplates a tabulation of each and every vote cast at the point of filing returns when the voting exercise ends. This is why in particular Forms 34A, B & C – used for filing returns for presidential election winners – each has a slot for tabulating the total numbers of valid votes cast, rejected votes, votes, disputed votes, stray votes and spoilt ballots. Further, Rule 81 of the Elections (General) Regulations 2012 provides, “upon completion of a count, including a re-count, the presiding officer shall seal in each respective ballot box – (a) valid votes; (b) rejected ballots sealed in a tamperproof envelop; (c) used ballot papers sealed in a tamper proof envelop; (d) counterfoils of used ballot papers sealed in a tamperproof envelop; (e) copy of election results declaration forms; and (f) stray ballot papers in tamperproof envelops.
In conclusion, the proper interpretation and understanding of the term “votes cast” should refer to all the votes cast. That conclusion flows from the result of a voter attending a polling station and placing a ballot in the ballot box regardless of whether later at the counting stage such votes are either declared as valid, rejected, disputed or stray. Otherwise, the question then would be, why bother with the tabulation of all the other votes if at the end of the exercise they count for nothing? ^