An election transmission showdown is looming between troops allied to Deputy President William Ruto and those of President Uhuru Kenyatta and ODM leader Raila Odinga.
The expected confrontation in Parliament follows radical proposals to amend the election laws to pave way for both manual and electronic transmission of presidential results in the August 9 general election.
In fact, the proposed law says any failure to transmit the results electronically would not be grounds for the Supreme Court to nullify the presidential vote.
Many parts of Kenya are still not covered by a 3G network and the proposed amendment could open an avenue for the IEBC to resort to manual transmission of results.
In 2017, the IEBC was unable to transmit results from at least 10,000 polling stations that were not covered by a 3G network.
Commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent
The Elections (Amendment) Bill, 2022, sponsored by the state and introduced in the House by Majority leader Amos Kimunya also provides for a complementary mechanism for voter identification.
This means IEBC officials would be allowed to use manual registers where Kiems kits fail.
"The commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent," part of the proposed amendment reads.
Among the provisions is that returning officers managing the election would have to travel to Nairobi with the results after transmitting the same electronically.
The proposed changes also seek to do away with the live transmission of results.
Under the current law, the IEBC is under obligation to establish a mechanism for live-streaming of results as announced at the polling stations for purposes of public information.
The live-streaming failed in 2017 and steadily showed Uhuru leading Raila by a consistent margin
In the proposed law, IEBC chairman Wafula Chebukati would only be allowed to declare the presidential results after receiving results from the 290 constituencies.
Currently, the IEBC is allowed to declare presidential results if the remaining results would not affect the overall results of the election
In the proposed law, where there is a dispute, the IEBC would have the powers to determine the accurate results between the manual results or the electronically transmitted results.
Under the current law, the IEBC is under obligation to use the results declared at the polling station and transmitted electronically.
The new legislation has redefined the process for the transmission of results in the August presidential election.
In this regard, a presiding officer would be required to take a picture of the results at a polling station and transmit the same electronically to the national tallying centre.
Constituency returning officer shall collate results in prescribed form – Form 34B – and deliver results in person from the polling station to the national tallying centre, together with the collated form
Presiding officers would thereafter be expected to deliver the results in person from the polling station to the constituency tallying centre.
A constituency returning officer would then be directed to combine the results in the prescribed form – Form 34A - and transmit the same electronically.
“The constituency returning officer shall collate the results in the prescribed form – Form 34B – and deliver the results in person from the polling station to the national tallying centre, together with the collated form,” the Bill reads.
Constituency returning officers would also be expected to electronically transmit the tabulated results of the election of the president “…and deliver in person the tabulated results from the constituency tallying centre to the national tallying centre,” the Bill reads.
It also provides that the IEBC shall tally, verify and declare the results of the presidential election from the polling station results.
The proposed law, which would impact the operations of IEBC, has elicited a lot of interest within the competing political quarters.
This was evident Wednesday when MPs allied to DP Ruto voted to reject the reduction of its publication period to five days from the usual 14 days.
Kimunya had moved a motion seeking to reduce the timeline to allow for the first reading of the Bill, citing the narrowing electoral timelines.
“This law is tied to the electoral process and we expect to have it expedited in the House for it to apply in the next election,” he said.
“The requirement for 14 days was before there was public participation. It doesn’t make sense to have the Bill published for 14 days and then taken through public participation for another 14 days,” he said.
He said members needed to pay special attention to the legislation as it aligns with the election calendar and the recently passed Political Parties (Amendment) Bill, 2021.
“The reduction was to allow us to read the Bill for the first time so we finish it within the first part of this session,” Kimunya said.
Electronic transmission of results was among the concerns Raila raised in his 2017 presidential poll petition, which was upheld by the Supreme Court on September 1, 2017.
The argument before the bench that was chaired by former Chief Justice David Maraga was that the law provides for compulsory electronic transmission of results.
Maraga's team had ruled that elections are not events but processes, interpreting Section 82 of the Elections Act that bitterly split the Supreme Court.
"Elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe," the majority ruled in 2017.
In 2018, the High Court stopped Jubilee MPs from making it almost impossible to overturn the outcome of a presidential vote based on results transmission.
Justice Chacha Mwita ruled the amendments reversed the gains the country had made in electoral reforms – especially electronic results transmission.
He said travel by poll officials to the capital could “open the results to possible adulteration and manipulation as well as mischief.
“The amendment reverses the gains the country had made in electoral reforms, including results transmitted in a particular form,” Mwita said.
The Bill also seeks to provide that one would have to present a valid Kenyan passport in order to register as a voter.
It also removes the provision for the inspection of voters registers 90 days from the date of notice of general election.
The register, which should be open for 30 days for the review, will now be opened at all times for the public to scrutinise the accuracy of their particulars.
A voter will not transfer his or her registration unless, on the date of application, the voter has been a resident of the constituency for six months.
To be considered is whether such persons are carrying on business, are employed, or possess land or a residential building in the particular constituency.
In the Bill, a poll petition challenging the election of an MCA will terminate at the High Court.
(Edited by V. Graham
