Parliament’s rejection of new regulations intended to seal loopholes in the voting system has thrown the electoral commission into a spin barely 60 days before the August 9 polls.
The National Assembly threw out the amendments to the Elections Act on the grounds that they were submitted late, had errors in drafting and that there was no public participation. The Independent Electoral and Boundaries Commission (IEBC) had sought to address pitfalls in results transmission where there is no network in gazetted polling stations, the provision of key elections data, including on access to the system and details of technology and machines used, and the appointment and deployment of returning officers.
The new regulations were meant to address some of the key issues that formed the basis of the Supreme Court nullification of President Uhuru Kenyatta’s 2017 election victory.
The historic decision by the bench, led by then-Chief Justice David Maraga, made Kenya the first county in Africa and only the fourth in the world where a presidential election result has been overturned by the courts.
Stuck with previous rules
Parliament’s rejection of the IEBC proposals means the agency might be stuck with the previous rules.
Although Parliament said the draft regulations were thrown out for late submission, IEBC chairman Wafula Chebukati, more than a year ago, told the media that the proposed amendments had been handed over well in advance to the lawmakers, but the House had “sat” on them.
The same lawmakers who threw out the regulations belong in the political outfits headed by the two leading presidential candidates—Deputy President William Ruto and former Prime Minister Raila Odinga—who have been faulting the IEBC for not updating the rules to address the faults identified by the apex court.
Analysts say Parliament is exposing the August election to pitfalls.
Constitutional lawyer Bob Mkangi termed it curious for the IEBC to submit the regulations late. “If this is the case, it is curious why the IEBC did this. It, obviously, leaves the exercise exposed to the 2017 pitfalls,” Mr Mkangi told the Nation.
Election expert Felix Owuor said all is not lost despite the rejection of the regulations, pointing out that the current laws, if strictly adhered to, could still lead to credible polls.
The executive director of Electoral Law and Governance Institute for Africa believes that the IEBC has proper legal standings—including the Supreme Court ruling—to conduct the polls.
“The Supreme Court ruling in 2017, together with current election regulations, is very clear on what constitutes a credible poll, how the polls should be conducted and the transmission of results,” said Mr Owuor.
Efforts to get IEBC reaction were unsuccessful as Mr Chebukati, CEO Marjan Hussein, Commissioner Justus Nyang'aya and legal officer Chrispine Owiye neither returned calls nor responded to text messages.
Among the things it was seeking to cure with the regulations is the problem of 11,000 polling stations with no 3G network—to send electronic versions of the results—and which the Supreme Court had said had led to an “inexcusable contravention” when it failed to do so.
In the rejected regulations, the electoral commission wanted presiding officers, in the absence of network at a polling station, to be allowed to move to the nearest point from the station that has network and transmit the results. “If there is still no network, the presiding officer to proceed to the constituency tallying centre and transmit [the results], “read the proposed regulations.
Currently, the law requires the presiding officer to capture the result, display it to all agents in electronic device before electronically transmitting it to the presidential tallying centre. Section 39 of the Election Act requires the results of the presidential elections in form 34A be transmitted electronically to constituency and the national tallying centres.
The IEBC has indicated that once the register of voters has been finalised, it will determine and publish the number of polling stations outside the 3-G network. Thereafter, all polling stations will be tested for the purpose of results transmission and satellite modems deployed in polling stations without 3-G network, the commission has said.
A row over how many polling stations are without coverage has recently put the IEBC and the Communications Authority on a collision path.
Result transmission technology
The electoral agency is also racing against time to test the result transmission technology. Today is the deadline for IEBC to test, verify and deploy the technology, being at least 60 days before a general election. The results transmission simulation is scheduled at the Bomas of Kenya, the designated national tallying centre. The test run will be conducted in the presence of the representatives of the four presidential candidates cleared by the commission.
The regulations were to guide on registration of voters, voter education, party nominations and lists, as well as the handling of elections technology.
The IEBC wanted them approved to facilitate presentation of information such as voter identification logs in the Kenya Integrated Election Management System (Kiems) kit, a record of the electronic unique reference number of result forms per polling station showing the date and time of transmission, and serial numbers of the elections technology devices deployed in the polling station.
In addition, the IEBC wanted guidance to share serial numbers of the SIM cards and serial numbers of the servers to be used and the commission’s policy on election technology management.
According to the regulations, where applicable, the IEBC was also ready to provide read-only access to information and persons authorised for this purpose. The media has also suffered a major blow as far as the live streaming of results is concerned as the IEBC had proposed to set a portal for that purpose.
“The commission shall set up a public portal or other media for live streaming of the results forms as it may determine,” read the regulations.
Open ballot boxes
The commission also sought to have returning officers allowed to open ballot boxes that have been sealed at the close of counting of votes. This proposal was seen as a move to address the judgment in the 2017 Maina Kiai case in which the Court of Appeal ruled that once sealed, a ballot box can only be opened through the leave of court.
The judges found that the way to cure the mischief of doctoring results is through electronic transmission from the polling station to a secured portal at the national tallying centre.
Another key proposal was for the IEBC to have the exclusive mandate to appoint returning officers and their deputies without sharing their details with the political parties and independent candidates as is the case now.