The electoral commission wants presiding officers allowed to open the ballot boxes "when they find that they wrongly put materials in the sealed ballot box".
The Independent Electoral and Boundaries Commission is asking Parliament to change the law to allow the presiding officer to reopen ballot boxes after being sealed at the close of counting of votes — in rare circumstances.
The accidentally inserted materials are not specified in the Bill.
The proposal is contained in the IEBC’s Elections (General) (Amendment) Regulations, 2022 which are due for consideration by the National Assembly Committee on Delegated Legislation.
The presiding officer shall open the ballot box and retrieve the required material in the presence of the returning officer, the constituency tallying centre agents, and polling station agents
IEBC’s latest proposal is among a string of other controversial and radical changes in managing results transmission.
Under the proposed new rule, a presiding officer with such an issue informs the constituency returning officer of the existence of such materials on arrival at the constituency tallying centre.
“The presiding officer shall open the ballot box and retrieve the required material in the presence of the returning officer, the constituency tallying centre agents, and polling station agents,” the proposed regulations read.
If approved, presiding officers would be allowed to seal the ballot box with a new lock and record the new serial numbers in the polling station diary.
“The polling station agents and tallying centre agents will be required to sign as witnesses to the process and the returning officer shall record the same in the polling station diary.”
In the event the polling station agents are unavailable, the returning officers shall invite the tallying centre agents to witness the process.
“In the event both polling station and tallying centre agents are unavailable or refuse to participate, the returning officer shall inform the commission for further guidance,” the regulations read.
The electoral commission defended the proposal, saying it would provide a procedure for opening sealed boxes.
“The regulations [existing] do not provide for the procedure to be followed by the presiding officer when s/he wrongly puts in materials and seals them inside the box,” IEBC said in an explanation attached to the rule.
Under the proposed regulations, the IEBC is also seeking to scrap the simultaneous transmission of results to the constituency tallying centre.
Instead, presiding officers at the polling stations will only send the electronic results to the National Tallying Centre.
After sending the electronic results to Nairobi, the poll officials will then be driven to the constituency tallying centre to deliver the results manually.
Where electronic transmission fails, the presiding officer would be required to move to the nearest point from the polling station with a good network.
“If there is still no network, proceed to the constituency tallying centre and transmit from the constituency tallying centre,”the regulations read.
The regulations also suggest a new order for counting and declaration of results.
First to be counted will be the presidential vote, followed by Member of the National Assembly, Member of County Assembly, Governor, Senator and lastly county Woman Representative.
The rules also provide that the IEBC “shall set up a public portal or other media for live-streaming of the result forms as it may determine".
In a new move, the IEBC proposes that constituency returning officers be allowed to disregard the results of a polling station where the total valid votes cast exceed the number of registered voters in that polling station.
The changes would also allow a candidate's spouse into the tallying centre.
Presently, only candidates, poll officials and agents, police officers on duty, observers and media are allowed access.
The law also provides that voters have no option but to pick ballot papers for all the six positions and cast all of them in their respective boxes.
Any violation would be an offence.
MPs last month rejected the commission’s bid to scrap Section 39(1G) of the Elections Act, 2011, which compels them to live-stream results.
The commission also sought a law change to prioritise manually transmitted results in case of disparities.
The Wafula Chebukati-led team said the commission was keen on giving priority to manual results.
IEBC proposed that when there is a disparity between the physical and electronic results, the physical results would supersede the electronic results.
The Elections (Amendment) Bill, 2022, which carried the legislative proposals, is currently in the Second Reading stage at the Senate.
On Wednesday, poll experts warned against reopening of ballot boxes, saying the proposal goes against the cardinal principle that the results declared at the polling station are final.
You cannot go to the constituency tallying centre and say you are opening the box. Basically what you are saying is that you may change the results or something may affect the results
Elog national coordinator Mule Musau told the Star much as the IEBC would want to deal with any concerns — such as stray ballots - there was danger lurking.
He said the move violates the court ruling, which stated that results at the polling stations are final.
“The minute you say results are final, you cannot open the ballot box. You cannot change those results. Remember, this is the constituency tallying centre and not the polling station.”
“You cannot go to the constituency tallying centre and say you are opening the box. Basically what you are saying is that you may change the results or something may affect the results,” Musau said.
He said the only time the ballot boxes are expected to be opened is upon a successful dispute resolution stating the need for such a move.
“This is where a dispute has been lodged and it is very clear that there is the need for looking at what is inside those ballot boxes. If you create another process, it can create arbitrariness and it would mean anybody can make a decision that may lead to change of results,” Musau explained.
In 2017, two presiding officers were arrested in Embakasi for attempting to destroy 16 presidential ballot boxes.
The boxes were broken and unsealed on the pretext of retrieving the results declaration forms 34A and 34B that ‘were erroneously sealed in them'.
Elog officials said since the IEBC failed to change the regulation in good time, the status quo should prevail.
The Delegated Legislation Committee is scheduled to meet with the commission on Friday to deliberate on the proposals.
The Tiaty MP William Kamket-led committee raised concerns about the time left for Parliament to ratify the regulations.
“We are meeting the IEBC on Friday afternoon after a meeting with the Treasury in the morning on the debt ceiling. But all the same, there is little time left,” said CDL vice chair Muriuki Njagagua.
Among other proposals IEBC is fronting for the House’s approval is that an elections officer will not be deployed as a returning officer or deputy returning officer in the constituency/county where they were recruited.
IEBC also wants the rules amended to provide that the national returning officer – Chebukati — declares presidential results from the county tally by constituency returning officers.
“Upon receipt of Form 34A and Form 34B from the constituency returning officer, the chairperson of the commission, shall notify the persons present on the constituencies whose results have been received,” the regulations read.
The chair would then tally and display the count into Form 34C, verify the count in Form 34C using the counts in Form 34A, display the duly filled Form 34C results to the authorised persons to confirm the accuracy of the results.
Chebukati would be required to announce the total number of registered voters in the republic, total votes cast, total votes rejected, and total valid votes in favour of each candidate.
“The chairperson shall announce the total number of votes for each candidate in each of the 47 counties, the percentage of votes cast in each county for every candidate, and the percentage total of national votes cast for each,” the rules read.
The IEBC would, however, not have to wait for results from all the 290 constituencies as long as it feels in its own assessment that they wouldn’t affect the overall results.
(Edited by V. Graham)
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