Error on ballots and other reasons why elections are postponed

Chairman IEBC Wafula Chebukati at the National Tallying Center, Bomas of Kenya is ready ahead of general elections to be held tomorrow.. August 8, 2022. [Jonah Onyango, Standard]

Less than 20 hours before the 2022 General Election, the Independent Electoral and Boundaries Commission (IEBC) suspended elections for the Mombasa and Kakamega governorship race as well as the parliamentary polls for Pokot South and Kacheliba.

IEBC Chairperson Wafula Chebukati said ballot papers for gubernatorial positions had errors, including wrong pictures for the candidates and details.

 Chebukati Monday also announced that the ballot paper details for Kacheliba and Pokot South Constituencies also had wrong details.

The Elections Act 2011 gives guidelines on what the commission should do in case an aspirant dies, or withdraws from the race after being cleared.

The Act states that a county governor candidate or a political party shall not, at any time, change the person nominated as a deputy county governor candidate after the nomination of that person has been received by the IEBC.

“Provided that in the event of death, resignation or incapacity of the nominated candidate, or of the violation of the electoral code of conduct by the nominated candidate, the political party may substitute its candidate before the date of presentation of nomination papers to the Commission,” the law says.

However, this focuses on aspirants who are yet to get clearance by the IEBC.

Once cleared by the electoral board, and one chooses to drop his or her running mate bid, what happens?

Lawyer Bobby Mkangi says the person running as president or governor will be allowed by the IEBC to choose a replacement, albeit swiftly.

This, he said, would work best if the ballot papers have not been printed.

Mkangi says it would be difficult for the IEBC to bar a candidate from running simply because his or her running mate opted out of the race a few weeks to the elections.

Should the electoral board strike the candidate out, chances are high the aspirant would sue the electoral referee.

“After the formal clearance by IEBC, only the death of a presidential candidate or running mate can get the election cancelled. Any other way, like resignation, will leave the candidate reeling and ruing his or her choice because chances are high he or she will lose the race,” he told The Standard.

Should a running mate opt out, Mkangi said: “It would be upon the political party or coalition party to inform the IEBC and see what their [Party] regulations say about such a circumstance,” he said.

But what does the law say when a ballot paper bears a mismatch error like in the four cases?

The Elections Act is silent on this matter but Article 64A (1) of the Elections (General) (Amendment) Regulations, 2017 states that the Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where (a) there is reason to believe that a serious breach of the peace is likely to occur if the election is held on that date; and (b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies.

Part two of the article states that “Where an election is postponed under sub-regulation (1), the election shall be held at the earliest practicable time”.

As a result, IEBC’s chairman Wafula Chebukati said he would make an announcement through a gazette notice on when the affected areas would hold the election.