The electoral agency is proposing fundamental changes in managing results transmission whereby physically transmitted results would be given precedence over electronic transmission.
In proposed changes to the election laws, the IEBC wants Parliament to pave the way for both manual and electronic transmission of presidential results.
In such a case, the presiding officer shall be accompanied by the agents and security. They might have to travel to the constituency tallying centre.
“This is so that where it is not possible to transmit results, they can move to a place in search of network with security officers. If they fail to get a network, they move to constituency tallying centre and transmit the results,” Owiye told MPs.
However, where there is a variance between the physical and electronic results, the physical results would supersede the electronic results.
“It is hoped that the two, one being the image of the other, will be similar,” IEBC's director of legal affairs, Chrispine Otieno Owiye, told Parliament.
He said in the event of variation, the physical form would take precedence over the electronic.
In another proposal, the Wafula Chebukati-led team suggests presiding officers should be allowed to move outside the polling station to “search for a network” to send the electronic results.
Currently, presiding officers are barred from sending results outside the coordinates of the mapped and gazetted polling stations.
IEBC says the proposed changes will enhance the efficiency and effective management of the presidential contest.
“If the result is sent outside of the polling station [under the current Act], the presiding officer commits an illegality. The amendments provide for instances where for lack of network, it is not possible to transmit the results of an election,” the commission argues.
In 2017, the IEBC was unable to transmit results from at least 10,000 polling stations that were not covered by a 3G network.
IEBC says any failure to transmit the results electronically should not be grounds for the Supreme Court to nullify the presidential vote.
In addition, it wants a complementary mechanism for voter identification.
This means IEBC officials would be allowed to use manual registers where Kiems kits fail.
But the IEBC proposals raised concerns that the same may open the door for manipulation of results following protests by Deputy President William Ruto's team that alleged a plot to rig the polls.
“The biggest issue on the ballot is the democracy of our nation and whether we truly have the opportunity to make free choices devoid of blackmail, threats and intimidation. That is a matter that is on the ballot,” Ruto said in the US two weeks ago.
The IEBC has proposed several amendments through the Elections (Amendment) Bill, 2022, which among others, seeks to do away with the live transmission of results.
On Monday, the IEBC said the provisional text results, which were beamed in the 2017 elections, were declared unconstitutional by the courts.
“We had provisional results which were broadcast on a screen. Those results were declared unconstitutional. The Maina Kiai and Supreme Court case of 2017 defined what constitutes election results,” Owiye said.
In the past election, the commission received results from presiding officers through text messages and images of Form 34A.
The text results were beamed on screens.
Owiye said presiding officers would, after counting ballot papers and filling Forms 34A, have agents witness if the results are accurate.
He said in the event a witness disagrees, they would have room to explain their protests.
In the proposed changes, the 290 constituency returning officers will have to physically travel to Nairobi and delver the results before the presidential votes are declared.
“Pictures would be taken but the physical result form must be transmitted to the constituency returning officer and the same to the National Tallying Centre" Owiye said.
"Presiding officers would thus, as they deliver the other results, send physical forms to the county returning officer," he said.
On Monday, MPs raised questions about what would happen in case a presiding officer fails to deliver the physical results.
Ruaraka MP Tom Kajwang’, his counterparts John Olago Aluoch (Kisumu West) and Mandera West’s Adan Haji spoke on the matter.
“What happens when someone has not appeared physically?” Kajwang’ asked.
“What if all you have is electronic and you are unable to get the physical form? If officers are hijacked, what do you do?” Olago asked.
Haji asked, “What if the original form fails to reach? Are there copies for agents?”
The IEBC said, "In the event the results do not reach the national tallying centre, then that portends there was an irregularity committed.
The rules the IEBC is applying are so serious and as such should be in the Elections Act, 2011 as substantive provisions of the parent law
“Otherwise, there would be a smooth relay of the physical results. Every agent has a copy and there would be a copy of Form 34A pinned on the door of the polling station,” Owiye said.
“The result is not just in one document. Agents are election officials with a duty to ensure elections are free and fair.”
But Olago said, " The rules the IEBC is applying are “so serious and as such should be in the Elections Act, 2011 as substantive provisions of the parent law".
“The provisions in the regulations for what happens when there is no network are so serious that they should be in the Act.”
MPs also called for clarity of Section 83 of the Elections Act, saying the existing clause is controversial and leaves the determination of whether an election was free and fair to judges.
(Edited by V. Graham)
“WATCH: The latest videos from the Star”
