Balancing the Scales of Electoral Justice 4.0 Scrutiny on Polling Day 4.1 Inspection of Election Materials Prior to Polling The third stage of scrutiny is at the polling stations. This appears to be a universal practice whose objective is to ensure transparency of the poll. Globally, on the election day, before polling commences, the election officials are required to display, “in full view of the candidates, or their representatives,”56 the ballot boxes to be used in the election for them to confirm “that [they are] empty”57 and allow candidates or their agents to examine the ballot papers to be used in the election.58 As this is done at the outset when all parties are keen to ensure the poll commences on a clean slate, no complaints have been brought to Kenyan courts of ballot boxes being stuffed with votes prior to the commencement of the poll. 4.2 Scrutiny at Polling Stations after the Poll The fourth and perhaps the most crucial stage of scrutiny is carried out at the polling stations after the poll to determine the validity and accurate number of votes cast for each candidate. This is of course done before the results are announced.59 Regulations 75, 76, 77 and 80 of the Elections Regulations set out an elaborate procedure of the mechanism of this scrutiny. Great emphasis is laid on the transparency of this exercise. The presence of the candidates or their agents and there being availed a reasonable opportunity of ascertaining that each ballot paper is actually marked in favor of the candidate to whom it is credited should be guaranteed.60 As stated, the purpose of this scrutiny is to determine 56 The Canada Elections Act, 2000, s.140. 57 Section 34 of The Sri Lankan Presidential Elections Act, No. 15 of 1981, s.34. See also The South African Elections Act No. 73 of 1998, s.37 and Halsbury’s Laws of England, (1990) 4th ed., 15, [par. 515] in respect of the UK. 58 Election Regulations, reg. 67(1) and 68(5) require presiding officers to allow the candidates’ election agents to inspect the ballot boxes before they are sealed and to affix their own seals if they so wish. 59 Before this scrutiny is carried out, Regulation 73 requires the presiding officer to make, in the polling station diary, a statement of “(a) the number of ballot papers issued to him or her under Regulation 61; (b) the number of ballot papers, other than spoilt ballot papers, issued to voters; (c) the number of spoilt papers; and the number of ballot papers remaining unused.” After making that record, Regulation 73 requires the presiding officer to seal, with his or her own seal and the seal of the Commission in separate tamper proof envelopes, “the spoilt ballot papers, if any”; “the marked copy register …;” “the counterfoils of the used ballot papers” and the said statement. Once again, the candidates or their agents have a right to place their own seals to those envelopes. The rationale for this record is accountability. All election materials, especially the ballot papers, which Regulation 68(4) (d) requires to be serially numbered, are accountable documents. It is from this record that the court is able to determine if there is any malpractice (such as over voting) where such allegations are made. 60 The Elections Regulations, 2012, reg. 76(2). 251