Kenya's future now turns on the technicalities of electoral law. As Katrina Manson of the Financial Times and Jason Straziuso and Rodney Muhumza of the Associated Press reported last night, factoring in the high number of rejected ballots in a calculation of voter turnout would reduce Uhuru Kenyatta and Raila Odinga's share of the overall presidential vote.
This would potentially deny either candidate outright victory on the first ballot, sending the election to a second round next month.
The AP wrote:
"Nearly 330,000 ballots - the number keeps rising - have been rejected for not following election rules, raising criticism of voter education efforts.
The election commission chairman announced late Tuesday that those spoiled ballots, as they are called here, will count in the overall vote total. That makes it very difficult, given the tight race, for either top candidate to reach the 50 percent mark needed to win outright. A runoff election between the top two candidates is expected."
First, let's deal with definitions. In the AP article, 'spoiled' and 'rejected' ballots are said to be interchangeable. The FT classes 'spoiled' ballots as a sub-set of 'rejected' ballots. In this KTN interview, the first panelist also gets it wrong, but is corrected by the subsequent speaker, Elisha Ongoya.
Spoiled (or as it is stated in Kenyan law, 'spoilt') and rejected ballots are different animals. While neither category of ballot counts towards a candidate's total, Kenya's General Election Regulations explain:
"71. Spoilt ballot papers. A voter who has inadvertently dealt with his or her ballot paper in such a manner that it cannot be conveniently be used as a ballot paper may ... obtain another ballot paper in the place of the ballot paper so delivered and the spoilt ballot paper should be immediately cancelled ..."
Put another way, a spoilt ballot is not a vote at all and does not count towards turnout. A spoilt ballot never enters the ballot box. If a spoilt ballot were to be counted towards turnout, it would effectively be counting the same vote or voter twice (as the spoilt ballot would have been replaced by a fresh ballot paper issued to the voter, and presumably correctly cast.)
A rejected ballot is something else. It might be less confusing if it was called a rejected vote. This is determined at the count. Regulations 77 and 78 state:
"77. Rejection of ballot papers, etc.
(1) At the counting of votes at an election, any ballot paper -
which does not bear the security features determined by the Commission;
on which votes are marked, or appears to be marked against the names of, more than one candidate;
on which anything is written or so marked as to be uncertain for whom the vote has been cast;
which bears a serial number different from the serial number of the respective polling station and which cannot be verified from the counterfoil of ballot papers used at that polling station; or is unmarked,
shall, subject to sub-regulation (2) be void and shall not be counted."
However, sub-regulation 2 allows:
"(2) A ballot paper on which a vote is marked -
elsewhere than in the proper place;
by more than one mark; or
which bears marks or writing which may identify the voter,
shall not by that reason only be void if an intention that the vote shall be for one or other of the candidates...clearly appears...and the manner in which the paper is marked does not itself identify the voter..."
Legal expert Ehuru Aukot suggests there may be other reasons for a ballot to be rejected, if, for example a ballot were to be cast in the wrong ballot box, but Regulation 78 is silent on this possibility:
"78. Rejected ballot papers
(1) Every rejected ballot paper shall be marked with the word 'rejected' by the presiding officer, and, if an objection is made...to the rejection, the presiding officer shall add the words 'rejection objected to'.
(2) The presiding officer shall mark every ballot paper counted but whose validity has been disputed or questioned by a candidate or an agent with the word 'disputed' but such ballot paper shall be treated as valid for the purpose of the declaration of election results at the polling station.
(3) After the counting of the vote is concluded, the presiding officer shall draw up a statement showing the number of rejected ballot papers under such of the following heads of rejection as may be applicable -
want of security feature
voting for more than one candidate;
writing or mark by which the voter might be identified; or
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. The ballot should be counted towards turnout, even if it doesn't count towards a candidate.
If such a ballot were not factored into turnout calculations, it would inaccurately portray participation in the vote, even if unfortunately, the voter has probably with inadvertence lost their ability to elect a candidate.
While it's too early to know why most votes were rejected, final polling station returns will be able to tell us more, and suggest whether there are reasons to question what appears to be a high number of rejected votes.
Had this vote been conducted under Kenya's old constitution, there would not have been a debate on rejected votes. Chapter II, Part I, article 5(3) f. of the repealed constitution states (italics added):
"the candidate for President who...receives a greater number of valid votes cast in the presidential election than any other candidate for President and who, in addition, receives a minimum of twenty-five per cent of the valid votes cast in
at least five of the eight provinces shall be declared to be elected as President."
Article 138(4) of the 2010 constitution, by contrast, says (italics added):
A candidate shall be declared elected as President if the candidate receives -
more than half of all the votes cast in the election; and
at least twenty-five per cent of the votes cast in each of more than half of the counties.
'Valid votes cast' are those that count towards a candidate, and do not therefore include rejected votes. 'All the votes cast' is a different formulation, and rejected (and disputed) votes therefore matter in determining whether the constitutional requirement for election to the office of president has been met.
Aly Verjee is senior researcher at the Rift Valley Institute.