MPs have overruled the electoral agency and approved radical changes to election laws that will now force the commission to live-stream presidential election results.
The Independent Electoral and Boundaries Commission wanted to scrap the sweeping Section 39(1G) of the Elections Act, which compels them to live-stream results.
The section was declared unconstitutional by the High Court in the case of human rights campaigner Maina Kiai and IEBC wanted it deleted to comply with the judicial decision.
The commission [IEBC] shall establish a mechanism for the live-streaming of final results as announced at polling stations
However, the IEBC failed to propose any safeguards to ensure real-time projection of results from polling stations.
The powerful Justice and Legal Affairs Committee chaired by Muturi Kigano rejected the IEBC proposal to remove the provision, consequently legislating live-streaming of presidential results.
The panel recast the section, expressly requiring the Wafula Chebukati-led commission to start preparations to ensure Kenyans can follow the results in real-time as they are declared from the polling stations.
“The commission shall establish a mechanism for the live-streaming of final results as announced at polling stations,” JLAC said in its report tabled in Parliament on Tuesday.
The report on review of election laws is expected to easily pass in Parliament.
Projection of presidential results has been cited as one step that would reduce anxiety among Kenyans about the integrity and transparency of the transmission process and results.
When the IEBC appeared before the committee, it said the results that were streamed live in the 2017 polls were declared unconstitutional by the courts.
The results the commission received from presiding officers through text messages and images of Form 34A were known as provisional results.
The committee said doing away with live-steaming would defeat the purpose of enhancing transparency in the announcement and declaration of presidential election results.
Live-streaming ... is one way of conforming to constitutional principles of transparency and accountability. Citizens should be able to compare live transmitted results with final declared results to confirm accuracy of the election results
"Live-streaming of election results is one way of conforming to the constitutional principles of transparency and accountability. Citizens should be able to compare the live transmitted results with the final declared results to confirm the accuracy of the election results,” the JLAC said.
The committee's radical proposals did away with what Kenyans have known as provisional results.
The House team rejected IEBC's bid to delay the declaration of a presidential election winner before getting results from all the proposed 53,000 polling stations.
"The chairperson may declare a candidate elected as the President before all the constituencies have transmitted their results if the commission is satisfied the results that have not been received will not affect the result of the election,” the committee recommended.
The committee has also proposed the IEBC puts in place a complementary system for identification of voters and transmission of election results.
The mechanism must be one “that is simple, accurate, verifiable, secure, accountable and transparent," the committee said.
However, the IEBC will have to draft regulations to outline what the complementary mechanism will entail and table them before Parliament for approval.
“Regulations made shall be tabled and approved by Parliament within 30 days of the coming into force of this Act,” the lawmakers said.
The committee has also sought to change the procedure for handling of the presidential results.
In the new dispensation, MPs want the IEBC to determine, declare and publish the results of an election immediately after the close of voting.
In what may set back the commissions’ bid to prioritise manually transmitted results in case of disparities, MPs have vouched for a complementary system of relaying results.
The IEBC would be required to electronically transmit and physically deliver the tabulated results of the election from the polling station to both the constituency tallying centre and to the national tallying centre.
“The commission shall tally and verify the results received at the constituency tallying centre and the national tallying centre,” the proposed amendment reads.
The IEBC had sought to have all the 290 constituency returning officers travel to the national tallying centre to physically deliver the results without necessarily electronically transmitting them from polling stations where networks fail or there is no network.
But the committee recommended the IEBC will have to ensure the results are electronically transmitted and delivered physically as well.
Appearing before the Justice Committee, the IEBC's director of legal and public affairs, Chrispine Owiye, said the commission was keen on giving priority to manual results.
“This is so that where it is not possible to transmit results, they can move to a place in search of a network with security officers. If they fail to get a network, they move to the constituency tallying centre and transmit the results,” Owiye told MPs.
The IEBC proposed that when there is a disparity between the physical and electronic results, the physical results would supersede the electronic results.
This proposal was made was on grounds that many parts of Kenya are not covered by 3G network and, hence, would pose challenges with the transmission of images of Form 34A from polling stations.
Chebukati, while before a Senate committee recently, said the Communications Authority had not connected them to the required network to enable them to transmit the results electronically.
“We shall be transmitting for the presidential elections the image of Form 34A, [but] we cannot transmit the image without a 3G network and above,” the IEBC chairman said. He said 2,800 new polling centres across the country would be affected.
In 2017, the commission said it could not transmit results electronically from more than 10,000 centres. This inability was among the factors the Supreme Court considered in its nullification of the presidential election.
But the JLAC has rejected that proposal and instead proposed the returning officers electronically transmit the tabulated results — in Form 34B.
They would also physically deliver the same to the constituency tallying centre and to the national tallying centre.
The committee has proposed that the IEBC appoints constituency returning officers to be responsible for tallying, announcing and declaration of final results from each polling station in a constituency.
This would be for election of a member of the National Assembly and MCAs.
The officer would be tasked with collating and announcing the results from each polling station in the constituency for the election of the president, governor, senator and woman representative.
The constituency returning officer would be required to submit the collated results of the presidential election to the national tallying centre.
Collated results for the election of governor, senator and woman representative would be submitted to the respective county returning officer.
MPs also rejected the push by the IEBC to bar persons not registered in regions with by-elections from contesting the seats.
The JLAC wants the law changed to provide that “a person not registered as a voter in an electoral area cannot contest the vacant seat” — as was the case of McDonald Mariga in the Kibra MP by-election.
MPs want the voters' register opened for inspection by members of the public at all times.
They seek to provide that the IEBC can make changes to the register at all times, except 60 days before an election, before a by-election and before a referendum after a question is published.
The committee further rejected proposals to bar voters from transferring to new stations six months to the elections.
(Edited by V. Graham)
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