The electoral commission has laid out at least 20 changes it wants effected to the law for a smooth General Election in 2022 in the hope that it will avoid the costly mistakes that led to the nullification of the 2017 presidential election.
The proposals on changes to the Elections Act were submitted to the Committee on Justice and Legal Affairs by the commission’s boss, Mr Wafula Chebukati, on Tuesday, with a plea that the amendments be effected before the end of the year to give the commission ample time to plan before the August vote.
The commission is seeking to amend section 44 of the Act to provide for a complementary mechanism for the transmission of presidential results -- a key area that was the subject of heated debate during the 2017 presidential election petition filed by ODM leader Raila Odinga, and which led to the nullification of the results announced by Mr Chebukati.
The amendment gives the commission power to put in place alternative mechanisms of transmitting presidential results in parts of the country that have poor internet connectivity.
The commission wants section 44 A of the Act amended to allow a complementary mechanism of transmission of presidential results. The purpose is to cure one of the challenges that were noted during the hearing of the petition against the declaration by the commission that Uhuru Kenyatta was the winner of the election.
If the amendment is adopted by Parliament, presiding officers will be required to move to the point nearest to the polling station, and which has good network to transmit the results accordingly. This is in the event of result transmission failure at the polling station.
“If there is no network, the presiding officer will have to proceed to the constituency tallying centre and transmit results from the constituency tallying centre,” the proposed amendment reads in part.
“Where Kenya Integrated Election Management system (Kiems) fails, the presiding officer shall inform the constituency returning officer of the failure of the kit and ask for replacement or repair of the kits.”
In the event that the Kiems kit cannot be repaired or replaced, the commission wants the presiding officer to document the incident in the polling station diary, which will then be signed by all the presidential candidates’ agents.
The presiding officer will then proceed to deliver the hard copy Form 34A and polling station diary to the constituency returning officer.
The commission will then have to publicise, through electronic or print media of national circulation, or any other accessible medium the failure of transmission from that polling station.
The Supreme Court, while nullifying President Kenyatta’s August 8, 2017 election win, found that the commission had committed irregularities in the transmission of results.
The Independent Electoral and Boundaries Commission (IEBC) had, during the hearing of the petition, conceded that they did not use the electronic transmission system they were required to, and instead relied on text messages and photographs of manually filled forms.
In 2013, the Election Voters Identification Device (Evid) -- the system set up to verify voters and remit results to the national tally centre -- failed, forcing the IEBC to revert to a manual count.
While in 2017 the tablets used for the voter identification and results transmission worked well, it failed to transmit some results on account of some of areas not covered by the 4G internet grid.
The court faulted the commission for having made a declaration of the winner based on the results transmitted from forms 34B at the constituency, even before it received result forms 34A from all the polling stations.
The court faulted the commission for having failed to ensure that parties had timely access to official polling-station level results in the days following the announcement of official results, which made it impossible for parties and observers to fully verify and cross-check the results against their internal data and reports in time to include any key evidence in court petitions.
Because of the mistrust in the management of changes to the election law since 2016, the commission has gradually introduced information and communication technologies into the voting process, with the goal of increasing the transparency of the election.
While technology should improve the election process, voter identification, prevent double voting, and aid fast and accurate results transmission and tabulation, that has not been the case, as its use in the 2013 and 2017 elections did not deliver the desired levels of transparency or efficiency.
The commission also wants section 39 of the Act amended to ensure electronic figures transmitted from the polling station correspond with those delivered physically to the returning officer.
The commission wants section 39 (2) and (3) deleted, as they were declared unconstitutional by the Court of Appeal in the Maina Kiai case of 2017.
Sub section (2) provides that before determining and declaring the final results of a presidential election, the commission may announce the provisional results while sub section 3 had obligated the commission to announce the provisional and final results in the order in which the tallying of the results is completed.
However, the appellate court adjudged that the results announced at the constituency by the returning officer are final and nullified the two provisions.
Whereas section 39 (1D) bound the chairperson of the commission to declare the results of the election of the President in accordance with the Constitution, the commission wants this section deleted and replaced with one that reads: “The commission shall verify that results transmitted and the physical submitted results are an accurate record of the results tallied, verified and declared at the respective polling stations.”
The commission also seeks to amend section 36 to give itself the power to ensure that the two thirds gender rule is achieved through political party primaries. Ever since the promulgation of the 2010 constitution, the gender rule has not been achieved in Parliament.
Article 27(8) of the Constitution obligates the state to take steps to ensure that not more than two-thirds of members of all elective and appointive positions are of the same gender.
In a matter filed by the Katiba Institute, whose judgment was issued in April 2017, the court directed the commission to develop administrative mechanism to ensure that the gender rule was achieved through political party primaries.
The commission announced two weeks ago that it is developing regulations to comply with the order of the court that will be shared with stakeholders for validation before they are implemented
For the regulation to take effect, the commission wants the law amended so that nomination lists for the 290 constituency seats -- which by law are submitted to the commission by political parties for registration -- contain alternates between male and female candidates in the priority in which they are listed.
Another amendment is to section 74 on the settlement of electoral disputes after the political party primaries. The commission argues that there is no consistency on when a dispute is to be lodged and when it is to be determined.
The commission wants this amended so that disputes arising from political party nominations are lodged with 24 hours of the last gazetted day of registration of candidates for election so that the commission can have a clear mechanism to hear and determine the disputes.
