Balancing the Scales of Electoral Justice
Australia,73 India,74 and South Africa.75 In Canada, which has provisions for
advance voting, the chief electoral officer engages an auditor with technical
and specialized knowledge to perform an audit and report if the election
officials have strictly complied with the law in the process of advance voting.
4.3 Recount of Votes at Polling Stations
Scrutiny is not restricted to only the examination of election documents
for determining the validity of votes. It includes a recount of votes.76 This
proposition comes out clearly from Rule 33(3) of the Election Petition Rules,
which talks of “scrutiny or recount of ballots.” The Kenya courts appear to
equate scrutiny with recounts and use these terms interchangeably. Recounts
are the ones that verify77 and authenticate not only the accuracy, but also the
validity, of the votes cast for each candidate, which in turn determines the
winners and losers. Regulation 80 of the Election Regulations makes recounts
mandatory when demanded by a candidate or his agent.78
Recounts before the results of an election are announced are also an important
feature in other jurisdictions. In Australia, after the initial counting of the
votes by the Polling Place Manager, a fresh or second scrutiny, returning
officers carry out the main objective being essentially quality control, within
48 hours of polling prior to the declaration of the election results.79 In
Canada, if the margin between the two top candidates is less than 100th of
the votes cast, an automatic recount is carried out.80 Where the margin is
greater than that, “on the affidavit of a credible witness,”81 one is entitled to
a judicial recount. This recount, though presided over by a judge, should be
distinguished from the challenge of the election results. This judicial recount,
which is conducted before the results are announced, is a tabulation of the
votes cast to correct counting errors. Though not expressly authorized by the
73 Commonwealth Electoral Act, 1918, s.265.
74 The Representation of the People Act, 1951, s. 47.
75 Electoral Act No. 73 of 1998, ss.47, 49 and 52.
76 See Said v. Mwaruwa & Another, [2008] 1 KLR (EP) 323.
77 G Tardi, ‘Judicial Recount of Election Results: The Saskatchewan Experience in 2000,’ MSU-DCL Journal of
International Law (2001) 10, 465,, http://www.heinonline.org, at 23 October 2015.
78 The Election Regulations, 2012, reg. 80 authorizes the presiding officer to suo motu carry out a recount and
accords candidates or their agents a right to at most, two recounts and states in imperative terms that “[n]o steps
shall be taken on the completion of a count or recount of votes until the candidates and the agents present at the
completion of the counting have been given reasonable opportunity to exercise the right given by this regulation.”
79 Commonwealth Electoral Act, 1918, s. 265.
80 This recount is carried out under Section 300 of the Canadian Elections Act, 2000 within four days of the poll and
before the results are declared by the Returning Officer under the supervision of a judge.
81 The Canadian Elections Act, 2000, s. 301(1).
255