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Kenyan voter loses ‘none of the above’ option on ballot paper

The High Court sitting in Nakuru has dismissed a petition filed by a voter seeking to compel the Independent Electoral and Boundaries Commission to include an option of ‘none of the Above’ on the ballot paper for the August 9 general elections.

Justice Hillary Chemitei in his ruling on Thursday said the claims in Mr Boniface Mwai’s petition are not founded in the constitution.

The judge said the matter ought to be addressed by the parliament which deals with the issues with the change in law.

He advised the voter to petition the parliament to institute proceedings towards changing the law in order to include the options that he is seeking.

“I disallowed the petition because I did not find it meritorious in terms of its claims which are not founded in our constitution. Parliament should be the one dealing with the issues to do with change in laws,” ruled justice Chemitei.

Mr Mwai Who filed the case in November last year, had sought to have the option included so as to give veers a wider choice.

In his petition he argued that the option would allow voters who do not have faith in the aspirants present to exercise their democratic right by registering that none of the contestants was worth their votes.

The petitioner argued that having an NOTA option is the only way to formally withhold consent at an election rather than counting an unmarked ballot paper as a spoilt vote as has been the practice.

Mr Mwai had listed the IEBC as the respondent in the case.

The IEBC however, in its response through lawyer Kipkoech Ngetich opposed the petition saying that the option was a violation of the constitution.

Through an affidavit of the Chief Executive officer Marjan Hussein Marjan, the IEBC claimed the law does not allow the NOTA option as a mode of voting.

Mr Marjan argued that the Constitution does not contemplate a situation where one goes to a polling station to abstain from voting, noting that an eligible voter has an option of not voting for any category of candidates.

According to the CEO, there are no formal procedures in place that would address situations where the ‘none of the above’ receives a plurality of the votes, and so winning the elections renders the option meaningless.

Mr Kipkoech welcomed the ruling which he termed as a win to the constitution.

Mr Kipkoech had argued that the NOTA option as suggested would have no legal consequence and that there would be no motivation for the voters to travel to the polling booth and reject all the candidates.

The court did not however issue orders regarding the cost of the suit.