50% + 1? Not in our constitution!
The Sunday Nation
Nairobi,
17 March 2013
As the Independent Electoral and
Boundaries Commission (IEBC) counted and tallied the Presidential
ballots after the just concluded General Election, it quickly became
clear that it would be difficult to predict the winner. Consequently,
one constant question kept coming up in the TV and radio commentaries:
“Do you think anyone will get the 50 per cent plus one vote required to
win this in the first round?”
This question disturbed my mind,
but not for the obvious reasons! So I looked it up in the Constitution
and I was happily surprised to find that it does not appear anywhere!
Section 138(4) reads: “A
candidate shall be declared elected as President if the candidate
receives – (a) more than half of all the votes cast in the election; and
(b) at least twenty-five per cent of the votes cast in each of more than
half of the counties.”
Political commentators and the mass media interpreted the phrase “more
than half of all votes cast” to mean “50 per cent plus one vote”.
Indeed, I heard one person explaining that “the winner must get 50 per
cent of all our votes, plus his/her own”. Even one of the IEBC
commissioners used “50 per cent plus one vote” when reading out some of
the results!
But do the two phrases mean the same thing? No they don’t. Reader Ngure
Wamiti, points to the reason by asking a simple question: “Why are we
assuming that the total number of votes cast will be even?”
Ngure illustrates his point
using an example where only 101 votes are cast. The calculation then
goes this way: “50 per cent of 101 is 50.5;
adding one gives 51.5. But since fractional votes do not exist, we have
to round this to the nearest whole number and get 52. Therefore, “50 per
cent plus one” in this case means getting at least 52 votes.”
But the
constitution simply says “more than half”. Now a half of 101 is 50.5;
therefore a candidate who gets 51 votes is the winner – 51 is “more than
half”. Clearly, one does not need 52!
A similar
argument should be used for the second requirement of the constitution:
the winner must garner “at
least twenty-five per cent of the votes cast in each of more than half
of the counties.” This means at least 24 of the 47 counties.
Luckily; the total votes cast this time round turned out to be an even
number: 12,330,028. But there were murmurs regarding the use of this
number in calculating the final percentages. Some people argued that
only the valid votes should be included. Well, I don’t think you need a
law degree to understand the words “all the votes cast”.
But why ALL votes cast? I think it is intended to take care of the voter
who doesn’t like any of the candidates. Such a person can intentionally
spoil the ballot because “none of the above” is not one of the choices.
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