•Election Observation Group, Mzalendo Trust, NDI, Electoral Law and Governance Institute and Transparency International gave views on the proposed law.
•According to the Bill, a presiding officer shall be required to deliver the results in person from the polling station to the constituency tallying centre.
Image: FILE
Experts have pocked holes in the proposed law seeking to redefine the procedure of handling election results from polling stations to the national tallying centre.
They say the Elections (Amendment) Act, 2022, has clauses that offend the provisions of the Constitution.
The team comprised Election Observation Group, Mzalendo Trust, NDI, Electoral Law and Governance Institute and Transparency International.
In a memorandum to MPs on the bill, the experts opposed the proposal that presiding officers would take images of results and transmit the same to county returning officers.
MPs from both sides of the political divide are reading from different scripts on the proposed legislation, which IEBC says is aimed at improving the electoral process.
According to the bill, a presiding officer shall be required to deliver the results in person from the polling station to the constituency tallying centre.
It provides that a constituency returning officer would collate the results and deliver them from the polling station together with the collation form to the national tallying centre.
“The Constituency Returning Officer shall electronically transmit the tabulated results of an election for the president and deliver in person the tabulated results from the constituency to the national tallying centre,” the bill reads.
It provides the IEBC would then tally, verify and declare the results of the presidential election from the polling station results.
However, the experts say the proposal has defeated the spirit of the Maina Kiai case that declared the transmission of results from a polling station as final.
“The clause was contentious as it would occasion delays in the announcement of the presidential results as the same needed to be tabulated at the constituencies by the returning officers,” ELOG says in a memorandum to MPs on the bill.
“The proposal increases the risk of manipulation of results. It is a murkier way of handling results. Is this the only way to cure the gaps? This makes it murkier,” Philip Gichana, a governance expert, said.
Among the concerns they raised is that it cannot be concluded that IEBC is the national tallying centre and also it would be hard to determine the validity of the results.
Also of concern is the speed at which the results would be transmitted in the face of IEBC firing a warning shot that at least 11,000 polling stations have no 3G network coverage.
“What measures do we have in place to ensure that the results by the presiding officers are final?” ELOG national coordinator Mule Musau asked.
The experts want to delete the provision barring persons from transferring their votes to a new constituency unless they have lived there for six months, own property, have a business or are employed in the area.
“Isn’t this an affront to the conditions to register as a voter as espoused under Article 38(1) (2) & (3) 83 of the Constitution?” the experts said in the memorandum.
They say the IEBC, in its Post Election Evaluation Report, had proposed the amendment would affect prospective candidates and not voters.
“The proposal infringed on individual political rights while intending to cure a moral issue. The amendment should thus be expunged in totality,” the team said.
The poll experts have raised concerns with the proposal that the commission would insist on a valid Kenyan passport for the registration of voters.
They say the proposed amendments were contentious as the question of the validity of a passport was unnecessary.
“The same was only required to be used as a verification document of identity and citizenship and not for purposes of travel where the validity of the document would arise,” the memorandum reads.
“Further, considerations needed to be made to allow one to register even with a driving license, or any other legally recognised document without imposing unnecessary restrictions.”
The word validity should be deleted, the team concluded, calling for the removal of clauses providing for the timeframe for the opening of the Principal Register of Voters.
The take is that this should not be left at the discretion of the IEBC.
“In particular, the wordings “except for such period as the Commission may consider appropriate” needed to be deleted,” ELOG says.
They backed the proposal for parties to excuse the IEBC from handling their respective party primaries, saying it removes the conflict of interest when the commission handles disputes arising from the process it has presided upon.
Edited by Kiilu Damaris