Conducting an election outside the gazetted polling stations will attract Sh2 million fine or jail term not exceeding five years or both as MPs push to secure and preserve the integrity of elections in the proposed reforms to the Election Offences Act.
The punitive measures in a new Bill before Parliament, targets members and staff of the Independent Electoral and Boundaries Commission (IEBC).
The Election Offences (Amendment) Bill 2024 before the Senate also seeks to create offences for members and staff of the commission who “unreasonably delay in declaring elections results or knowingly alter declared election results”.
The Bill, in the names of leader of majority in the Senate Aaron Cheruiyot (Kericho) and his minority colleague Stewarts Madzayo, specifically seeks to amend section 6 of the Election Offences Act to ensure that the results that are declared by the IEBC officials come from the gazetted polling stations.
“It shall be an offence for members and staff of the IEBC to conduct or hold an election in an un-gazetted polling station,” the Bill reads
The Bill is a product of the National Dialogue Committee (Nadco) whose report was adopted by Parliament in February 2024.
Nadco, a bipartisan arrangement, was established to cool the political temperatures in the country following deadly protests after Azimio leader Raila Odinga disputed the outcome of the August 9, 2022 presidential election.
The bipartisan talks co-chaired by Wiper leader Kalonzo Musyoka (Azimio) and Kikuyu MP Kimani Ichung’wah (Kenya Kwanza), also the leader of majority in the National Assembly, addressed include a reformation of all the election sector laws to create a level playing field among the competing candidates in an election.
IEBC gazetted 46,232 polling stations that were used in the 2022 general election and 40,883 polling stations for the 2017 general election.
However, a petition that successfully challenged the outcome of the 2017 presidential election, claimed that IEBC “illegally and fraudulently established un-gazetted polling stations in Mandera County which were manned by un-gazetted and undesignated returning and presiding officers.”
Results transmission discrepancies
The presidential election petition that was filed by Mr Odinga, challenging the victory of his then bitter rival- President Uhuru Kenyatta- also highlighted various discrepancies in the transmission of the election results.
For instance, the petition claimed that there was transmission of election results from slightly more than 11,000 polling stations other than gazetted polling stations where vote-count results were added to the final tally, contrary to Regulation 7 (1) (c) of the Elections (General) Regulations of 2022.
This, according to the petitioner, undermined the integrity of the presidential election.
Currently, holding or conducting an election in an un-gazetted polling station is not part of the election offences under the law.
Therefore, to safeguard against this, the Bill proposes new section 6 (n) under the law.
“A member of the commission, staff or any other person having any duty to perform pursuant to any written law relating to any election who, where required to declare the result of an election, fails or unreasonably delays to declare the results of an election commits an offence,” the Bill proposes.
The Bill also seeks to introduce section 6 (o) under the Act to make it an election offence for a member or staff of the commission who “knowingly or intentionally interferes, alters or knowingly or intentionally causes another person to interfere or alter declared results.”
Regulation 7 (1) (c) of the Elections (General) Regulations of 2022 states that IEBC shall publish and publicize through electronic and print media of national circulation and other easily accessible media a gazette notice.
The notice shall specify the polling stations established for each constituency, which may be the same as the registration centres which they respectively comprise and the distinguishing number or letter or combination, assigned to each polling station.
The notice shall also include the place or places appointed or the vehicle or vehicles, vessel or vessels designated for the establishment of a polling station or stations for each electoral area.
“In determining the number of polling stations and the location of any polling station, the commission shall have regard to geographical considerations, accessibility for persons with special needs including persons with disabilities, population and any other factors affecting communication between places within the electoral area,” the regulations dictate.
