“More than half of votes” is not the same as “50pc + 1 vote”

By MUNGAI KIHANYA

The Sunday Nation

Nairobi,

11 September 2022

Is there a “50 per cent plus one vote” rule in Kenyan presidential elections? The answer is simply NO! Our constitution states that “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.”

The phrase “more than half the votes” is often misinterpreted to mean the same thing as “50 per cent plus one vote”. In 2013, I explained that this is not the case. The two phrases can only be the same if the total of valid votes is an even number; that is, if it is divisible by two.

In the just concluded presidential election (2022), the total valid votes was 14,213,137. This is an odd number. In paragraph 76 of the abridged judgement upholding the result of the election, the Supreme Court did this arithmetic: (14,213,137÷2) + 1 = 7,106,569. Since William Ruto had 7,176,141 votes, the Court concluded that he had been declared the winner correctly.

I have copied these numbers from the actual judgment as published on the official www.KenyaLaw.org website. The first thing to note is the arithmetic error: (14,213,137÷2) + 1 = 7,106,569.5 = 7,106,570; not 7,106,569. Secondly, doing this kind of calculation is the wrong way to go about the question!

The constitution simply says “more than half”. Therefore, the first step is to divide 14,213,137 by two. The answer is 7,106,568.5. We do not need to worry about the 0.5 and what it represents! Furthermore, we should NOT round it off at this stage: rounding might introduce serious errors.

Instead, we immediately check if there is a candidate with more votes than this number. William Ruto, has 7,176,141 which is more than half of the total. Case closed!

This might seem like a trivial matter, but considering how tightly contested our presidential elections are, it is not inconceivable that one day, a candidate will cross the half-way mark by half of a vote!

It worth noting that part (b) of this law says “twenty-five per cent of the votes cast in each of more than half of the counties”. We are all happy to interpret this as “at least 24” out of the 47 counties. If we applied the “50 per cent plus 1” methodology here as well, it would come to “at least 25”.