Report of joint House select panel on electoral reforms

Parliamentary Joint Select Committee on IEBC Co-Chairmen James Orengo and Kiraitu Murungi. (PHOTO: FILE/ STANDARD)

1. THEMATIC AREA 1

Allegations against Commissioners and the Secretariat of the Independent Electoral and Boundaries Commission (IEBC), specifically on:

(a) Credibility;
(b) Impartiality;
(c) Integrity; and
(d) Independence.

Recommendations of the Committee
Taking into account the mandate of the Committee and the views received from the majority of the stakeholders and the public and following consultations with the IEBC, the committee resolved to explore legal mechanisms for the dignified vacation from office.

2. THEMATIC AREA 2

Recommendations on legal mechanisms for the vacation from office of the current Commissioners and the Secretariat of the Independent Electoral and Boundaries Commission in accordance with the Constitution.

Recommendations of the Committee
The Committee recommends as follows:
(1) That a dignified and negotiated vacation from office of the current Commissioners of the Independent Electoral and Boundaries Commission be negotiated and agreed upon by the commissioners, the Attorney-General, the Cabinet Secretary – National Treasury and the Salaries and Remuneration Commission within two weeks of the adoption of the Report of the Committee by Parliament;
(2) That there be a seamless transition between the current Commissioners and the new Commissioners; and
(3) That in respect of the Secretariat of the commission, the existing disciplinary mechanisms of the commission be applied, as appropriate, by the commission.

3. THEMATIC AREA 3

Recommendations on legal, policy and institutional reforms to strengthen the Independent Electoral and Boundaries Commission so as to ensure the August, 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner.

Recommendations of the Committee
The committee recommends as follows:
(1) That the number of commissioners of IEBC be retained at nine/ be set at .....(instructions to be received);
(2) That for the appointment of the commissioners, a Selection Panel be established and appointed by the President, consisting of:
(a) four persons, being two men and two women, nominated by the Parliamentary Service Commission;
(b) One person representing the Kenya Conference of Catholic Bishops 
(c) One person representing the National Council of Churches of Kenya 
(d) One person representing the Evangelical Alliance of Kenya; and
(e) One person representing the Supreme Council of Kenya Muslims, the National Muslim Leaders Forum and the Kenya Council of Imams and Ulamaa; and
(f) One person representing the Hindu Council of Kenya;
(3) That the Parliamentary Service Commission provides secretariat services to the Selection Panel;
(4) That the commissioners serve on a full-time basis;
(5) That mechanisms be put in place to provide for staggered appointment of the commissioners so that the expiry dates of their terms fall at different times;
(6) That on the roles of the commission vis-à-vis the secretariat-
(a) The Commissioners be responsible for strategy, policy direction and oversight;
(b) The Secretariat implements policies designed by the commissioners and performs day-to-day administrative functions of the commission;
(7) That in light of the fast-approaching date of the next General Election, the processes relating to the appointment of the new Commissioners be undertaken with expedition;
(8) That for the future, the processes of recruitment of new commissioners be commenced at least six months before the expiry of the term of their term; and
(9) That the Elections Act be amended to include provisions on vacation from office by the Commissioners other than by way of removal from office in line with similar legislation.

4. THEMATIC AREA 4

Recommendations on legal, policy and institutional reforms to improve the electoral system and processes so as to ensure the August, 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner.

Recommendations of the Committee

(a) Voter Registration
The Committee recommends as follows:
(1) That the IEBC engages an independent body to conduct a technical audit of the Principal Voters Register so as to determine whether to conduct a clean-up of the Register or fresh voter registration.
(2) That for purposes of the conduct of the audit and in the future for the maintenance of the Principal Voters Register, the National Registration Bureau and all other agencies and institutions that hold information on Kenyan citizens avail the information to the Independent Electoral and Boundaries Commission electronically for cross-referencing;
(3) That the IEBC puts in place policy mechanisms for maintenance of the Principal Voters Register that would, among other things, remove dead voters from the Register, add new voters and transfer voters between polling stations and that the Commission publishes the revised Register at least once a year;
(4) That the Elections Act be amended to increase the period for verification of the Principal Register of Voters and scrutiny and closing of the register before elections from the current sixty (60) days to ninety (90) days;
(5) That verification of the Principal Register of Voters be only by means of biometric voter data and that this be done at the polling stations;
(6) That the IEBC makes provision for online inspection of the Principal Register of Voters by individual voters through a public portal;
(7) That the IEBC ensures that the registration of prisoners as voters for presidential elections is implemented and that a progress report on this matter be included in the Commission’s Annual Report to the President and Parliament submitted under Article 254 of the Constitution;
(8) That the IEBC ensures that mechanisms and targets for the progressive realisation of registration of Kenyans abroad are put in place and that a progress report on this matter be included in the Commission’s Annual Report to the President and Parliament submitted under Article 254 of the Constitution;
(9) That the Elections Act be amended by deleting section 5(3A) and (3B) to disallow the use of an acknowledgment of registration certificate (waiting card) in elections;
(10) That the National Registration Bureau facilitates the expeditious issuance of Identity Cards and, in particular, that-
(a) in the case of a fresh application for an identity card, the application be processed within a period of thirty (30) days; and
(b) in the case of an application for replacement of an identity card, the application be processed within a period of fourteen (14) days;
(11) That the National Registration Bureau develop simple guidelines for vetting of applicants for issuance of Identification Cards.

(b) Voter Education
The Committee recommends that the IEBC:
(1) Partners with other agencies and non-state actors in the provision of voter education; and
(2) Ensures the inclusion of people living with disabilities when carrying out voter education.

(c) Nomination and Registration of Candidates
The Committee recommends as follows:
(1) That at the request of a political party, the IEBC conducts and supervises party nominations in accordance with Article 88 of the Constitution;
(2) That party nominations be conducted at least sixty (60) days before elections;
(3) That the IEBC publishes the dates of nomination of all political parties in the Kenya Gazette;
(4) That political parties forward to the IEBC the names of their candidates for nomination fourteen (14) days before the nominations and that the IEBC publishes the names in the Kenya Gazette within ... Days (you are welcome to suggest);
(5) That independent candidates forward their names to the IEBC fourteen (14) days before the nomination date in the same manner as candidates participating in the party nominations;
(6) That after the names of candidates are forwarded to the IEBC, candidates cannot change their parties.;
(7) That any amendments with regard to timelines for the nomination processes be concluded at least six months before the August 2017 General Elections so as not to interfere with preparations for the elections (go into the Bill);
(8) That the Office of the Registrar of Political Parties continuously updates party membership lists so that only registered members are allowed to participate in party nominations;
(9) That party membership lists be used for party nominations as opposed to the voter register;
(10) That fiscal incentives be put in place in the law to encourage the implementation of the two-thirds gender principle in the nomination processes by political parties;
(11) That the sanctions prescribed in the Political Parties Act be enforced by the Registrar of Political Parties.

(d) Campaign Management
The Committee recommends that the publication of the Election Campaign Financing Regulations, 2016 be fast-tracked.

(e) Publicity and Media
The Committee recommends that the IEBC-
(1) Liaises with the Media Council in developing and implementing Regulations on media coverage and conduct during campaigns as well as electoral polls; and
(2) Mainstreams the needs of persons with disabilities in the publications of the Commission on election matters.

(f) Use of Information Communication Technology in Elections
The Committee recommends as follows:
(1) Guiding Principles for Use of ICT
(a) That the ICT systems used be accessible, secure, verifiable, transparent, auditable, modular/ scalable and universal;
(b) That the processes for the identification, procurement and deployment of ICT systems be conducted in an open and transparent manner; and
(c) That no new technology should be introduced in the election process later than one year before an election.

(2) Legislative Framework for ICT
(a) That section 44 of the Elections Act be amended to require the use of technology in the electoral process;
(b) That pursuant to sections 44 and 109 of the Elections Act, the IEBC, in consultation with the Attorney-General’s Office, the Law Reform Commission, the ICT Board, the Computer Society of Kenya, the Communications Authority of Kenya and any other relevant agency or institution, makes regulations to govern the use of technology in the elections, and that the regulations be tabled in Parliament within one month;
(c) That the regulations to be made provide for, among other things:
(i) acquisition and disposal of ICT assets and systems;
(ii) testing and certification;
(iii) audit mechanisms and the conduct of the audit;
(iv) status of audit records versus electronic records;
(v) transparency requirements;
(vi) data storage, access and security;
(vii) data retention and disposal;
(viii) maintenance of the Principal Voters Register;
(ix) voter identification;
(x) access to source codes;
(xi) telecommunication service provision;
(xii) acquisition and disposal of ICT assets and systems;
(xiii) inventory of ICT assets and systems;
(xiv) capacity building of staff and other stakeholders on ICT to be used in the electoral process; and
(xv) the establishment of an ICT oversight technical committee comprising of key stakeholders.

(3) ICT for the 2017 General Elections and Beyond
(a) That for purposes of the 2017 General Elections, the technology to be applied shall be for registration, identification and results transmission (BVR, EVID and RTS);
(b) That the IEBC puts in place mechanisms to ensure:
(i) Electronic submission of names and other information required in the nomination processes;
(ii) Electronic transmission of all poll results; and
(iii) Polling result forms be made available to the public through a public portal;
(c) That the IEBC ensures that the necessary hardware and software are in place to support the use of technology in the 2017 General Elections;
(d) That where procurement of new equipment may be necessary, the Independent Electoral and Boundaries Commission, in consultation with all relevant agencies and institutions, ensures the timely procurement of appropriate equipment;
(e) That all existing equipment and any new equipment procured, if any, be tested and deployed in good time in readiness for the next General Election;
(f) That a structured and scheduled capacity building programme be put in place and implemented for training of staff and other stakeholders on the technology to be used in the electoral system;
(g) That the IEBC urgently puts in place a Disaster Recovery and Business Continuity Plan; and
(h) That in the long-term, the IEBC puts in place an integrated election system that would handle voter registration, voter validation and identification at the polling station and results transmission, including scanning of the signed poll result forms, with unique transmission identification marks.

(4) Guiding Principles for Use of ICT
(d) That the ICT systems used be accessible, secure, verifiable, transparent, auditable, modular/ scalable and universal; and
(e) That no new technology should be introduced in the election process later than one year before an election.

(g) Voting Process
The Committee recommends as follows:
(1) That the Elections Act be amended to limit the number of voters in each polling station to seven hundred (700); and
(2) That the Independent Electoral and Boundaries Commission puts in place adequate arrangements to facilitate voting by persons with disabilities.

(h) Transmission and Declaration of Election Results
The Committee recommends as follows:
(1) That the Elections Act be amended to provide that-
(a) the chairperson of the Independent Electoral and Boundaries Commission shall be the National Returning Officer responsible for the tallying, verification and declaration of the final results for the election of the President;
(b) the Commission appoints county returning officers to be responsible for tallying, announcement and declaration of final results from constituencies in the county for purposes of the election of the County Governor, Senator and county woman representative to the National Assembly.
(c) the Commission appoints constituency returning officers to be responsible for:
(i) tallying, announcement and declaration of the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;
(ii) collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly; and
(iii) transmitting the collated results for the election of the President to the National Returning Officer and the collated results for the election of the county Governor, Senator and county women representative to the National Assembly to the respective county returning officer.
(d) the Commission appoints presiding officers to be responsible for:
(i) tallying and announcing results at each polling station for the election of the President, county Governor, Senator, county women representative to the National Assembly and member of the National Assembly; and
(ii) transmitting the tallied results to the respective constituency returning officer.
(2) That the Elections (General) Regulations, 2012 be amended to facilitate the tallying, announcement and declaration of results in accordance with (1) above.

(i) Allocation of Special Seats
The Committee recommends that in order to ensure transparency in the allocation of special seats, regulation 54(8) of the Elections (General) Regulations, 2012 be amended to require that the Independent Electoral and Boundaries Commission publishes the party lists submitted by political parties under Article 90 of the Constitution on the same day as that for the publication of candidates nominated to contest in the elections by the respective parties.

(j) Election Observation, Monitoring and Evaluation
The Committee recommends that the IEBC accredits election observers and monitors in good time before an election so as to facilitate the work of the observers and monitors.

(k) Dispute Resolution (Including Nomination and Petitions)
The Committee recommends that within 48 hours of the filing of a petition challenging the election of a President-elect under Article 140 of the Constitution, the IEBC  delivers documents supporting the presidential election results to the petitioner.

(l) Election Offences
The Committee recommends as follows:
(1) That a ‘stand-alone’ Elections Offences Bill consolidating all elections offences be enacted;
(2) That the rendition of the offence of bribery under section 62 of the Elections Act be simplified;
(3) That the offence of treating be deleted from the Elections Act and that its elements be incorporated in the offence of bribery;
(4) That section 4(l) of the Elections Act that mandates the Independent Electoral and Boundaries Commission to investigate and prosecute election offences by candidates, political parties or their agents under be deleted so that the function resides with the Office of the Director of Public Prosecutions; and
(5) That section 87 of the Elections Act be amended to provide clarity on the procedures relating to the submission and disposal of a report of an election court following its determination on whether an election offence is likely to have been committed.

5. OTHER RECOMMENDATIONS
The Committee recommends that Parliament establishes a mechanism by which it shall oversight the implementation of the recommendations in this Report and the electoral processes until the 2017 General Election.