Livestreaming of presidential election results by TV stations and online platforms will be illegal in the proposed amendment to the Elections Act.
The Elections (Amendment) Bill 2022, currently before Parliament, however, makes it difficult to alter the results of a Presidential election as announced at the polling stations.
The Bill, sponsored by the government, also seeks to have the decision of the High Court on an appeal on the election of a Member of the County Assembly (MCA) to be final.
The Bill is critical to how the August 9, 2022 General Election will be conducted, specifically the transmission of the presidential results.
However, the proposal to repeal the requirement that the polling result forms on an online public portal maintained by the Independent Electoral and Boundaries Commission (IEBC) is likely to cause uproar among the nongovernmental organisations. The Bill was tabled in the National Assembly on Wednesday.
But a procedural motion to shorten its publication period from 14 days to seven was defeated after 62 MPs allied to United Democratic Alliance (UDA) of Deputy President William Ruto ganged up against 42 supporting Azimio la Umoja coalition of ODM leader Raila Odinga.
Shortening the publication period means shortening the period within which it is to be committed to the relevant committees to conduct public participation.
Belgut MP Nelson Koech and his Soy colleague Caleb Kositany, both allies of DP Ruto, said that he will rally his colleagues to defeat the Bill or “in the unlikely event it goes through” seek redress at the High Court.
“This Bill is mischievous. If they are for a credible, transparent process, why shut out the media from streaming live the presidential election results. We are not for this,” Mr Koech said.
“I am smelling a rat. These people want to rig elections. We will not allow the media and other online channels to be shut out in the livestreaming of the presidential election results,” said Mt Kositany.
Currently, the IEBC is required to facilitate public information, establish a mechanism for the transmission of results as announced at the polling stations.
“The results so streamed shall be for purposes of public information only and shall not be the basis for a declaration by the commission,” the current law states.
But in a case of pure give and take, the Bill seeks to ensure that checks and balances prevail in the transmission of the presidential results from the polling stations to the national tallying centre.
Currently, the law provides that Presiding Officers appointed by the IEBC electronically transmit the image of the relevant form containing the presidential results to the Constituency Returning Officer (CRO).
The CRO is then required to collate the results, feed into the relevant form, send the image and physically deliver the forms to the national tallying centre. This requirement has, however, been marred with credibility issues.
This is because instances of presidential results announced at the polling stations not tallying with those electronically transmitted to the national tallying centre have been the bane of Presidential election petitions at the Supreme Court in 2013 and 2017 general elections.
The Bill proposes that a Presiding Officer shall electronically transmit the image of the results in the prescribed form to the national tallying centre.
The presiding officer shall then deliver the results in person from the polling station to the constituency tallying centre.
The CRO shall then collate the results in the prescribed form and deliver them in person from the polling station together with the collated form to the national tallying centre.
“The CRO shall electronically transmit, in the prescribed form, the tabulated results of an election of the president and deliver in person the tabulated results from the constituency tallying centre to the national tallying centre,” the Bill signed by leader of majority Amos Kimunya (Kipipiri MP) proposes.
The work of the electoral agency chaired by Mr Wafula Chebukati shall be limited to verifying that the results transmitted are an accurate record of the results tallied, verified and declared at the respective polling stations.
Under the pure presidential system of government from the 2010 Constitution, the leader of majority has the obligation to sign government sponsored Bills introduced in the National Assembly or the Senate.
Physically delivered results
Further, in the spirit of bipartisanship as opposed to the adversarial pure parliamentary system of government, the leader of minority in either of the two Houses of parliament also signs government sponsored Bills introduced in the relevant House.
Currently, where there is a discrepancy between the electronically transmitted and the physically delivered results, the IEBC shall verify the results and the result which is an accurate record of the results tallied, verified and declared at the respective polling station shall prevail.
However, the Bill wants this provision repealed.
Also proposed for deletion by the Bill is the requirement that any failure to transmit or publish the election results in an electronic format shall not invalidate the results as announced and declared by the respective IEBC officers at the polling and constituency tallying centres.
The Bill also seeks to make it illegal for the IEBC chairman to declare a presidential winner before all constituencies have transmitted their election results if the commission is satisfied the results that have been received will not affect the results of the election.
The commission will also not announce the final results in the order in which the tallying of results is completed as is the case now.
The Bill also seeks to have the decision of the High Court on a petition filed against a governor heard and dispensed off by the High Court while that of MCA be determined by a Resident Magistrate’s court.
