MPs are pushing for strict new laws that would slap individuals conducting elections outside the gazetted polling stations with punitive sanctions if the proposed changes to the Election Offences Act that aim to secure and safeguard the integrity of the vote become law.
The Election Offences (Amendment) Bill 2024, which is coming up for consideration at the committee stage in the National Assembly this week, proposes a two-million fine or a jail term not exceeding five years or both for the Independent Electoral and Boundaries Commission (IEBC) officials found guilty of the offence.
“It shall be an offence for members and staff of the IEBC to conduct or hold an election in an un-gazetted polling station,” reads the Bill reads.
The Bill 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.
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 a 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 proposed new section reads.
The Bill, co-sponsored by leader of majority in Senate, Aaron Cheruiyot (Kericho) and his minority colleague, Stewart Madzayo (Kilifi), is a product of the National Dialogue Committee (Nadco) whose report was adopted by Parliament in February 2024.
Kilifi Senator Stewart Madzayo.
Photo credit: File | Nation Media Group
The Bill was passed by the Senate on November 19, 2024 and formally forwarded to the National Assembly where it was read a first time on December 3, 2024 and subsequently reviewed by the House Committee on Justice and Legal Affairs (JLAC).
The Bill also seeks to create offences for members and staff of the commission who “unreasonably delay in declaring election results or knowingly alter declared election results.”
Nadco, a bipartisan arrangement, was established to cool the political temperatures in the country following deadly protests after Azimio leader Mr 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 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.”
The presidential election petition challenging the victory of President Uhuru Kenyatta in the August 9, 2022 presidential election 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.
Voters queue to cast their votes at AC Ol Kalou Primary School polling station during the Ol Kalou by-election on July 16, 2026.
Photo credit: Boniface Mwangi | Nation Media Group
This, according to the petitioner, undermined the integrity of the presidential election.
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 publicise 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.
