IEBC pushes for electoral law changes

IEBC Director of Legal Services Chrispine Owiye. [Courtesy, X/IEBC]

The Independent Electoral and Boundaries Commission (IEBC) has proposed sweeping legal and administrative reforms aimed at strengthening Kenya’s pre-election dispute resolution process ahead of the 2027 General Election, including extending the period for determining nomination disputes from 10 to 14 working days.

The proposals are contained in the Commission’s Pre-Election Disputes Resolution Report and Case Digest for the 2022 General Election, launched yesterday.

The Commission says the current statutory timelines are too restrictive and place immense pressure on its Dispute Resolution Committee (DRC), potentially affecting the quality of decisions and increasing appeals that could disrupt the electoral calendar.

Speaking during the launch, IEBC Director of Legal Services Chrispine Owiye said the Commission developed the dispute resolution framework in line with the Elections Act and successfully determined all complaints filed during the 2022 election period within the timelines provided by law.

“The Commission relied on the provisions of the Elections Act in developing the rules governing the resolution of pre-election disputes. Despite the strict timelines, all disputes filed before the committee were heard and determined within the period provided by law,” Owiye said.

During the 2022 General Election, the Commission received 323 pre-election disputes, all of which were determined within the statutory 10-day period after the election calendar was gazetted.

However, the report notes that meeting the deadline came at a cost, with committee members working late into the evenings, at night and over weekends despite the formation of three dispute resolution panels and the co-option of advocates to chair some of the panels.

“It was clear that the filing, hearing and determining the complaints within 10 days still took a toll on the Panel members, even after it took steps for empanelment, co-opting advocates to chair the panels, and adopting constructive dialogue with parties regarding timelines for making submissions,” the report states.

To address the challenge, IEBC is proposing amendments to Section 74(2) of the Elections Act to increase the period for determining disputes to 14 working days.

According to the report, the additional time would allow complainants to prepare their cases, collect evidence and present their arguments while enabling the committee to make well-reasoned decisions.

The Commission, however, notes that extending the timeline would require corresponding adjustments to other electoral activities, including candidate gazettement and ballot paper printing.

The report also recommends extending the period for lodging complaints from the current 24 hours to 48 hours.

“The current 24-hour timeline is restrictive as complainants require adequate time to prepare pleadings, gather evidence, instruct counsel where necessary and travel to Nairobi for physical filing,” Owiye said.

To improve access to justice, IEBC is proposing virtual hearings and digital systems for filing, managing and preserving cases, noting that conducting hearings exclusively at the Milimani Law Courts in Nairobi posed logistical challenges for parties and Returning Officers based outside the capital.

Among the key recommendations is a proposal to tighten verification requirements for public officers seeking elective office.

The Commission recommends that candidates who resign from public service be required to submit a Certificate of Service in addition to a resignation letter before being cleared to contest elections.

“This requires proof of resignation under Section 51 of the Employment Act, closing a loophole for fake resignation letters,” the report states.

IEBC is also proposing that public-sector employers be legally required, upon request by the Commission, to provide information on an aspirant’s employment status and confirm removal from the government payroll within three days.

The report says the measure would help curb cases where forged or deceptive resignation documents are used to secure clearance while ensuring public officers do not continue earning salaries while campaigning.

The Commission further recommends providing clearer guidance to candidates before nominations through pre-registration meetings to ensure they understand the nomination requirements and statutory timelines.

To simplify the nomination process, IEBC is proposing additional payment options for statutory nomination fees, including the introduction of a dedicated Paybill number, instead of relying solely on banker’s cheques.

The report also calls for stronger collaboration between the Commission and the Office of the Registrar of Political Parties, enhanced training for members of the Dispute Resolution Committee, improved documentation and publication of committee decisions, and better preservation of case records to build a consistent body of electoral jurisprudence.

Further, IEBC wants Parliament to harmonise the definition of ‘nomination’ under the Elections Act and the Political Parties Act to eliminate confusion over the respective mandates of the Commission and the Political Parties Disputes Tribunal.

“Define ‘nomination’ once and for all. There is a need to harmonise the interpretation of the terms ‘nomination’ and ‘party nomination’ as used in the Elections Act and the Political Parties Act, respectively,” the report stated.

The Commission also proposes expanding voter education on the role of the Dispute Resolution Committee by working closely with political parties, independent candidates, the Office of the Registrar of Political Parties and the Law Society of Kenya.

According to the report, the reforms are intended to create a more efficient, transparent and accessible pre-election dispute resolution system capable of safeguarding political rights while improving the management of electoral disputes ahead of future elections.