IEBC seeks raft of legal changes to enhance credibility of poll results
By Roselyne Obala
| October 17th 2021
The Independent Electoral and Boundaries Commission (IEBC) has proposed a raft of amendments to election laws for transparent and credible polls next year.
Among emerging issues that might land the commission in legal challenges and result in loss of public trust is the determination and declaration of the presidential results, based on the ruling in favour of Maina Kiai that results declared at polling stations are final and the apex court’s judgement that led to the nullification of the 2017 presidential election results.
The Wafula Chebukati-led commission will have 53,000 polling stations in the next year’s General Election, which will be up from 40,000 in 2017. This, the commission argues, is in line with the requirement for a maximum of 700 registered voters per polling station.
IEBC also seeks changes to Section 39 of the Elections Act on determination and declaration of results through text and uploading of the results form in the electronic transmission process to the National Tallying Centre.
To ensure transparency and credibility of the polls, IEBC wants the electronic figures to correspond with those physically delivered to the returning officer from polling stations.
It proposes the deletion of Section 39 (2) and (3) and instead amend (1) to read, “Electronically transmit, in prescribed form, the tabulated results of an election for the president and physically deliver from a polling station to the constituency tallying centre and to the national tallying centre’ in compliance with the Kiai decision that its unconstitutional.”
In compliance with the court decision, IEBC, in its report which The Sunday Standard is privy to, wants the changes to read, “The commission shall verify that results transmitted and the physically submitted results are an accurate record of the results tallied, verified and declared at the polling stations.”
Tied to this, IEBC has identified poor network connectivity in some parts of the country as an emerging issue that could have a negative impact on the outcome of elections.
“There are regions with poor network connectivity that may require alternative mechanism to enable the Presiding Officers to transmit presidential results to the constituency tallying centre and the national tallying centre,” reads the report.
It seeks changes to Section 44 of the Act to provide for an elaborate procedure for transmission of election results.
“In case the result transmission fails at the polling station, the Presiding Officer will be required to, in the Election (General) Regulation, 2012, opt for complementary mechanisms for identification of voters and transmission of results,” reads the proposal.
According the Johanna Kriegler Commission, which probed the disputed 2007 presidential contest, IEBC should be properly constituted with the relevant legal requirements in place to deliver credible polls.
Chebukati has faulted MPs for dragging their feet and only rushing to deal with the electoral laws at the last minute. Equally, MPs have not shied away from blaming his team for sleeping on the job.
IEBC, in seeking to ensure they address any lacuna in law that could lead to the nullification of the presidential election results as was the case in 2017, has cited many issues.
They include conflicting timelines between the verification and inspection of the register of voters as provided for in Section 6 of the Act.
‘Inspection is a continuous process and the timelines are not practical. The conflicting timelines is dealt with by amending Section 6(2) to read the commission shall cause the register of Voters to be opened for inspection by members of the public at all times for the purpose of rectifying the particulars therein, except for such period of time as the commission may consider appropriate,” it reads.
This means the IEBC is seeking to have the inspection of the register of voters and verification of biometric data done simultaneously.
“By merging the two, the commission will have easily accessible modes of verification of details whether physically or through online platforms. This cuts down on costs of having two processes undertaken differently,” it proposes.
When it comes to timelines which states that IEBC shall within 90 days from the date of the notice for a General Election, open the register for inspection for a period of at least 30 days or such period as the commission may consider necessary.
IEBC is grappling with the requirement of Section 36 on nomination of party list members.
It is seeking changes on how the commission can ensure women are included in the party list to meet the gender rule requirement in law.
“Parties have not complied with the gender rule for the party list. Section 36 (A) stipulates: “A party list submitted shall contain alternates between male and female candidates in the priority in which they are listed.”
To ensure a higher chance of women to be nominated, it wants the section amended to read, “commence with female candidate’ instead of alternate.”
IEBC is also seeking alignment of party primaries.
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