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The Independent Electoral and Boundaries Commission (IEBC) has opposed a petition in court by a voter seeking the introduction of ‘none of the above’ (NOTA) option on ballot papers in the August polls. 

Citizen Boniface Mwai had filed a petition before a Nakuru High Court, arguing that Kenyans needed another option for wider choice. 

In the petition where IEBC is listed as a respondent, Mwai, says the prospect will allow voters who do not have faith in candidates to exercise their democratic right by registering that none of the contestants was worth their votes. 

Strange concept

However, the IEBC in its submissions yesterday through advocate Kipkoech Ng’etich opposed the petition saying NOTA suggestion was a violation of the Constitution. 

Ng’etich, noted Kenyan laws do not recognise ‘NOTA’ as a mode of voting. 

“The petitioner has not stated which provision of the Constitution allows that the right not to vote for any candidate demands one to cast a vote against all the candidates. The prayers are not founded on any law in Kenya,” said Kipkoech. 

Kipkoech argued that the move was a strange concept in Kenya’s jurisdiction saying for the same to be applied, it should be founded on legislation which squarely lies with Parliament. 

“Kenyan provisions have no scope for negative voting. We submit that the Election Act and the Constitution do not envisage that a voter has any right to cast a negative vote, if he does not like any of the candidates,” he said. 

He wants the court to declare the petition a nonstarter, saying it is an abuse of the court process and a move to interfere with the conduct of the August, General-Election.

“There are no formal procedures in place that would address situations where the ‘none of the above’ receives plurality of the votes, and so winning the elections.  

Legal consequence

“In other countries that have a ‘none of the above’ option, India for example, in the event of NOTA wins, the candidate or party polling the next highest number of votes would be allowed to take office regardless. Clearly, this renders the option meaningless, as NOTA win would indicate that more voters actively rejected all the available candidates than endorsed any one of them,” said Ng’etich.

The advocate added that NOTA has no legal consequence and there shall be no motivation for the voters to travel to the polling booth and reject all the candidates. 

The case will be heard on June 23 before Justice Hillary Chemitei.