What if we separate vote for the president from other positions?

President-elect William Ruto when he cast his ballot at Koschei Primary, Sugoi, Turbo Constituency. [DPPS, Standard]

The first phase of Elections 2022 is over. We are now headed to the judicial chapter which we have learnt, from both 2013 and 2017, has the capacity to throw us shockers.

As the country settles, we need to use the lessons learnt from these elections to improve the quality of our elections and the legal and political acceptability of the result. The challenges evidenced in the elections require a multiplicity of approaches. Some require a change in law to smoothen what are obvious inadequacies of the process as currently designed.

The first proposal is for a basic but consequential change; separating the voting day presiding officers, polling clerks and agents from those that oversee the counting.

Many of the errors that will become the subject of petitions are actually innocent errors procured by sheer exhaustion of officers and agents who are totally pooped by the time counting is completed and the "A" series forms are being completed and signed. There should thus be a 6pm handover so that a fresh set of eyes carries out the counting exercise.

Secondly, we should consider separating the presidential election from the other elections. The reality is that the focus on the presidential election marginalises the other elections and reduces the focus on the candidates for these seats. The "suit" phenomena is a natural corollary of the current arrangement and produces underserving candidates. There are obvious cost and stability benefits from a joint election, but we need to balance those against the obvious downsides.

Thirdly, we have all realised the overwhelming benefit that came from uploading the presidential election polling station results (Form "34A") in the IEBC portal, thus making such results publicly available. Interestingly, this was not a requirement of the law, the applicable section having been declared unconstitutional a while back. The IEBC acted voluntarily in recognition of the Supreme Court's decision in the 2017 petition. My take is that the results of all elections should mandatorily be uploaded on the IEBC portal.

This will have the benefit of enhancing transparency in the entire electoral process. I have no doubt it will also reduce election petitions by a huge percentage.

There is however a set of events that occurred in this election that were pointers to how vulnerable the exercise is to human misconduct. For instance, the law makes assumptions about rightful conduct of election officials and does not provide for fall back mechanisms if people act unreasonably.

In a county I was intimately involved in, a constituency returning officer read the results of all candidates at the constituency level and then disappeared without delivering the results to the county returning officer for aggregation.

For more than 24 hours, the results, which had been publicly read at the constituency, could not be tallied so that overall winners could be announced. The tension was palpable. What if the officer had never turned up?

The law has no immediate fallback. At the national tallying centre, the drama of the four commissioners raised interesting questions. The law assumes that once results are verified and tallied, all commissioners will agree on the same so the chair can declare the results. What if a rogue chair refused to prepare Form 37C or to declare a winner? What if the chair was "disappeared" before reading the final declaration?

The law does not provide for immediate fallbacks. There are numerous similar circumstances which the law makes assumptions of normalcy and provides no fallbacks, but which can cause confusion and possible upheaval in a tension-filled environment thus lead to unimaginable chaos.

While answers may not exist for all possible situations, this year has shown that we need to prepare for what otherwise seems improbable; it could be our crisis in the next elections.