MPs plan changes to 2022 elections law

The electoral commission will now be allowed to declare elections results from physically delivered forms, a big departure from the requirement to have all results transmitted electronically.

The Elections (Amendment) Bill, 2022, which was read for the first time in Parliament yesterday, seeks to provide for complimentary mechanisms for voter identification and transmission of results.

The Bill also seeks to alter the flow of election results for a presidential election, with presiding officers only required to send images of the results to the national tallying centre and then personally delivering them to the constituency returning officer.

The constituency returning officer, the Bill says, shall collate the results and physically deliver them to the national tallying centre, where the Independent Electoral and Boundaries Commission (IEBC) will tally, verify, and declare the results. 

The Bill is seeking to amend Section 39 (1D) of the Elections Act by adding the words “and the physically delivered results”, sealing a window that the Supreme Court had cited in nullifying the 2017 presidential election results.

In its 2017 ruling, the Supreme Court narrowed down on 11,000 polling stations, some of them in Kiambu, Murang’a, Kisumu town, and other places that generally have good network, and which the IEBC said could not transmit their results forms because of lack of network.

“It is common knowledge that most parts of those counties have fairly good road network infrastructure. Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the presiding officers to travel to vantage points from where they would electronically transmit the results,” the judges ruled, terming the failure an “inexcusable contravention”. 

The new Bill now makes it possible for election results to be delivered physically or by other means where it is not possible to do so electronically. 

“The commission shall verify that the results transmitted and the physically delivered results under this section are an accurate record of the results tallied, verified and declared at the respective polling stations,” says the new Bill, sponsored by Majority Leader Amos Kimunya. 

For Kenya, the proposed return to a physical delivery of elections results is an expensive one. 

Results transmission

In 2013, Kenya splurged Sh4.6 billion on 15,000 Biometric Voter Registration (BVR) kits and Sh1.7 billion on 34,000 Electronic Voter Identification Devices (Evid).

It also bought a Results Transmission System at Sh638 million, in addition to mobile phones, modems, sim cards, projectors, and other materials.

In the end, the results transmission was only able to transmit presidential poll results from 14,252 of 31,981 polling stations (44.6 per cent), with the figure dropping even lower for National Assembly, county ward and woman representatives, senate, and governor elections.

And while the BVR system was used in voter registration in 2017, the commission discarded the Evids, the RTS and the use of BVR on Election Day, choosing a new technology — the Kenya Integrated Elections Management Systems (Kiems) to identify voters, results transmission, and candidates’ registration management system. 

The IEBC procured 45,000 of the kits at Sh2.4 billion from OT-Morpho. Out of its total budget in the 2017 polls, IEBC used Sh5.5 billion as capital investments on the purchase of technological gadgets and equipment.

And while the IEBC procured and now owns the Kiems kits hardware, the equipment needed regular updates from the French firm to keep it useful, the IEBC said in its latest annual report.  

If this is not done, the country risks having to buy again similar materials in the August elections, with Mr Chebukati saying, “The back-end and the front end to these (Kiems) systems can still be reused in future if they are properly maintained to the required standards.”

But the commission has since floated a fresh tender for new elections technology. 

The proposed law wants all ward representatives’ election petitions to terminate at the High Court, in what it hopes will avoid crowding of the Court of Appeal, which is the appellate court for all other election petitions.

The Bill also wants those seeking to dispute IEBC’s decision to accept or reject nomination papers — before party primaries winners or independents are declared candidates — to do so within 48 hours after the last day of such an exercise. 

Voter registration

It also sets conditions for transfer of voters, the key provision that allows Kenyans to move from one polling station to another in any constituency in the country, or outside it, where the IEBC is registering voters.

If the Bill passes, those seeking to transfer will be required to prove that they are employed, own a business, or possess land or a residential building — for at least six months — in the constituency they intend to transfer to.

In the last three weeks of IEBC’s mass voter registration, it has approved 130,320 requests to transfer polling stations with 1,072 being in the 11 countries where the commission is registering Kenyans in the diaspora, making voter transfer a key provision of the Elections Act. 

The new Bill also seeks to reduce the time needed for parties to present membership lists, which is now required to be certified by the registrar, to 90 days, down from 120.

While the current law allows Kenyans to register as voters using a national identity card or a Kenyan passport, the new Bill requires that the commission ensures that the latter is first valid before doing so. 

The Bill also seeks to amend various sections of the Act to comply with the Political Parties (Amendment) Act that now gives more powers to the Registrar of Political Parties.

“The Bill seeks to amend sections 14, 16, 17, 19, 22, 23, 24, 25, 32 and 33 of the Act by deleting the words ‘nominations’ and substituting it with the words ‘registration of candidates’. This will ensure that there is a clear delineation of roles of the IEBC vis-à-vis the role of the Registrar of Political Parties during nominations or registrations of candidates,” Mr Kimunya says of the Bill. 

IEBC had opposed the provisions to give more powers to the registrar, including certifying names of persons in a party list are indeed members of a party, saying it infringes on their role.

“This provision usurps the powers of the IEBC. Party list nominations are elections conducted by the commission. It is the commission to verify qualifications of the nominees and the lists are submitted as closed lists to the IEBC,” said Mr Chebukati. 

“The registrar lacks the constitutional authority to certify any party list, as this is tantamount to the verification of the list by the IEBC as guided by Article 90 of the Constitution.” 

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