• The reforms to electoral processes that have been initiated in Kenya have been triggered by, among other factors, failure to deliver credible and acceptable elections.
• The challenge facing nascent democracy like Kenya is to ensure that elections are couched in a democratic spirit, and backed up by strong institutions that can ensure and sustain electoral integrity.
When the people of Kenya adopted, enacted, and gifted themselves and their future generations the 2010 Constitution in August 2010, it was not an ordinary, political act.
Nor was it an empty ritual. It was a pivotal moment, pregnant with meaning and significance.
It was the indomitable will of the people to take charge of their destiny and bend the arc of history to align with their most cherished aspirations and ideals as to how they wished to be governed, and to organize their affairs.
The promulgation of the Constitution of Kenya 2010 was doubtless the most momentous act of sovereignty and self-determination since Independence, and in the Constitution, they declared the birth of a new dispensation founded on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
And it is no accident that Chapter One of the Constitution proclaims the sovereignty of the people, the supremacy of the Constitution and imposes on every person a solemn obligation to respect and defend the Constitution.
The Constitution goes on to declare our Republic to be a multi-party democratic State founded on the national values and principles of governance captured in Article 10.
These values are not mere suggestions or aspirations to be attained at some future date, by generations yet unborn.
They are directive and obligatory principles that are immediately and presently binding on all State organs, State officers, public officers and all persons whenever any of them apply, or interpret the Constitution; enact, apply or interpret any law; or make or implement public policy decisions.
They are broad and all-inclusive in their reach, sweeping in their sway and peremptory in their command. They include, but are not limited to;
“10(1) (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.
(c) good governance, integrity, transparency and accountability. …”
The Constitution of a nation is not simply a statute that mechanically defines the structures of government and the relationship of government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and ... aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion.
The people of Kenya arrived at those principles out of a studious consideration and appreciation of the sufferings and trials of their nationhood and the struggles and sacrifices that they, and their heroic compatriots, had made to bring freedom and justice to their land.
They were also keenly aware that the ties that bind them in united nationhood are periodically stretched and strained at election time and so sought to insulate the electoral process from the deleterious perils and malaise of opacity, corruption, crime and malpractice.
The antidote they prescribed was an electoral system founded on and infused with, clearly defined core principles including, in particular, free and fair elections that are conducted by an independent body, are transparent in character and administered in an impartial, neutral, efficient, accurate and accountable manner.
A three-judge bench of the High Court (Muchelule, Korir, and Mwita JJ.) delivered judgment on 7th April 2017 in a constitutional petition filed by Maina Kiai, Khelef Khalifa, and Tirop Kitur, the 1st, 2nd and 3rd respondents, respectively, against the Independent Electoral & Boundaries Commission, the appellant, and the Attorney-General, the 4th respondent addressing a question of importance understanding of electoral accountability, the sanctity of the vote, the giving effect to the will of the people in the matter of elections and its overall constitutional philosophy.
The High Court allowed the petition in the following orders:
- It is declared that to the extent that section 39(2) and (3) of the Elections Act provides that the presidential election results declared by the constituency returning officer are provisional (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
- It is declared that to the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officer are provisional (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
- It is declared that to the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officers are subject to confirmation by the Commission (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;
- It is declared that the presidential election results declared by the constituency returning officer are final in respect of the constituency, and can only be questioned by the election court; and
- It is declared that to the extent that the 1st respondent interprets section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) to mean that it can confirm, alter, vary and/or verify the presidential election results declared by the constituency returning officer in the particular constituency (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void.
IEBC filed an Appeal at the Court of Appeal against High Court declaration asking the Appellant Court to consider whether section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) are inconsistent with Articles 86 and 138(3) of the Constitution and to issue the appropriate declarations.
Court of Appeal started by the tracing history of Kenya’s troubled electoral processes.
The Court noted that the country has had a long, windy and turbulent electoral journey.
Because elections determine political winners and losers, electoral processes, from voter registration through to declaration of results, have long been targeted for manipulation and are the foremost cause of electoral conflicts.
Such manipulation or, sometimes even the mere threat of it weakens public confidence in democratic processes, in the courts, security agencies, in the legislature and in the end, can erode the legitimacy of governance institutions.
Lack of trust among the political parties and players and suspicions of electoral fraud have in the past catalyzed polarization and triggered bloody ethnic conflicts in nearly every election cycle.
The reforms to electoral processes that have been initiated in Kenya have been triggered by, among other factors, failure to deliver credible and acceptable elections.
Pressure from the public has also been instrumental in the introduction of some of the electoral reforms that have been witnessed, as was the case in 1997 when under the auspices of the Inter-Parties Parliamentary Group (IPPG) far-reaching constitutional changes were introduced.
Global and regional obligations for transparent and accurate electoral administration have played an equally important role in setting the yardsticks by which the electoral processes and administration are to be assessed in future.
But even with these many strides, the fear of manipulation of the election results and interference with the integrity of the electoral process generally persists.
Nothing demonstrates this election manipulation fear, mistrust and weak processes better than the below passages from the Kriegler Report showing how over the years the country has done the same thing over and over again with the same obvious result: DEMOCRATIC ELECTORAL FAILURE.
A quote from Krigler Report sums up:
“6.7...Concerns about the counting, tallying, transmission and announcement of results are not new in Kenya. In 1992, on the occasion of the first multiparty elections, an International Republican Institute (IRI) pre-election report noted that:
‘... the electoral law does not stipulate the mechanism for transmittal of constituency results to the ECK in Nairobi [and] urges that this information be transmitted in ... a timely way’ (p. 23).
The violence that convulsed Kenya after the disputed 2007 presidential election is a scar etched in our history and engraved in our hearts and souls forever. Regarding its causation, the Kriegler Report came to the irrefutable conclusion that;
“……. the ECK was not able to manage the counting, tallying and results announcement processes in such a way that it secured the integrity of the electoral process at either the presidential or the parliamentary level…… If one – be it a voter, a candidate, a media representative, a party leader, an election observer – cannot trust the accuracy of the election results published by an EMB, [Electoral Management Body] then nothing is left and the political system loses credibility as well as legitimacy”.
Kriegler Report made key recommendations regarding the need for integrity in the counting, tallying of votes and the ultimate announcement of results.
- IREC recommends that the ECK integrate the various descriptions of the entire counting and tallying procedure into one document – and one document only – which will then be the principal description and must be adhered to. The need for such descriptive regulations does not depend on possible changes in the counting and tallying system.
- IREC recommends that without delay ECK start having developed an integrated and secure tallying and data transmission system, which will allow computerized data entry and tallying at constituencies, secure simultaneous transmission (of individual polling station level data too) to the national tallying centre, and the integration of this results-handling system in a progressive election result announcement system.
- IREC recommends that ample time be allowed for verifying provisional results so that they are declared final/official only once there is no risk that errors may still be found or non-frivolous objections raised. Most countries allow one to two weeks for this – there must be sufficient time to check the provisional results, which are given status as final results only when all objections have been considered, all checks and rechecks conducted and the final verdict issued by the proper authorities. Given a clear explanation of what a provisional result is, there is no problem in making voters understand that election results are so important that they can be declared final only once they have been properly scrutinized and checked”. (
Further on the history of elections in Kenya and talking specifically about the elections of 2013, the Report of the Joint Parliamentary Select Committee on the Matters Relating to the IEBC (16th August 2016) (the Kiraitu/Orengo Report), observed;
“452. There were challenges experienced with the electronic transmission of the results including that only 17,000 of the 33,000 polling stations managed to transmit results before it was overwhelmed by some technical hitches. This alternative method of getting results had to be discontinued when it became too slow and although the problem was identified and fixed, a number of officials had abandoned the transmission as they took hard copies of the same to tally centres. There were also network failures and suspicions of system hacking which necessitated a reversion to physical submission of the results”.
In paragraphs, 454 to 460 of the Joint Parliamentary Select Committee on the Matters Relating to the IEBC report sets forth and considers the provisions of Articles 86 and 138, section 39 of the Act and the Regulations.
The report notes that several stakeholders were concerned about the venue, manner and process of declaration of final and conclusive elections results.
The Joint Committee Report had near unanimity in opinion that, since the first level of a declaration of results is at the polling station, those results should be final and should only be challenged in a court of law; that the form filled out for the declaration of results at the polling station should be the primary election form and all other forms can only be tallies of the final results rather than confirmation forms; that, for those reasons the stakeholders recommended to the Committee that regulations 76, 77 and 78 be amended to provide for the conclusive determination of ballots at polling stations and amend the relevant electoral forms to align them with this recommendation; and that further, the Elections Act be amended to provide that the results announced at the polling station be final and definite.
These recommendations were informed, according to the report, by concerns based on past experience where some returning officers would annul results that had been announced at polling stations, causing uncertainty and tension in the electorate.
In the Committee’s view, it was that mischief that informed the enactment of Article 138(3)(c) of the Constitution, which requires that;
“138(3) In a presidential election—
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result”.
This invaluable background enabled the Court of Appeal to address conjoined twin question; whether section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) are inconsistent with Articles 86 and 138(2).
The Court correctly started with consideration of is Article 2(1) and (4) where the Constitution declares itself the supreme law that binds all persons and all State organs, and therefore;
“Any law, including customary law, that is inconsistent with this Constitution, is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”.
Pursuant to the constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability under the present legal regime, in the presidential election, the votes cast at each polling centre shall be counted, tabulated and the outcome of that tabulation announced without delay by the presiding officer.
The results announced at each polling station shall be transmitted to the constituency returning officer, who in turn will openly and accurately collate the results from the various polling stations in the constituency and then promptly announce the outcome of the collation.
From the constituency tallying centre, the returning officer will electronically transmit the results directly to the national tallying centre.
Court of Appeal concluded that the amendments to the Election Act in 2016 were intended to cure the mischief identified by the then IEBC and other stakeholders.
That mischief was, the spectacle of all the 290 returning officers from each constituency and 47 county returning officers trooping to Nairobi by whatever means of transport, carrying in hard copy the presidential results which they had announced at their respective constituency tallying centres.
The other fear was that some returning officer would in the process tamper with the announced results.
One of the factors in the electoral system reforms that were underscored in the 2016 and 2017 amendments to the Elections Act, was the use of information technology to guarantee the accuracy and integrity of the results of elections.
The Court further observed that elaborate system electronic transmission of the already tabulated results from the polling stations, contained in the prescribed forms, is a critical way of safeguarding the accuracy of the outcome of elections, and do not see how the IEBC or any of its officers can vary or even purport to verify those results, particularly when it is clear that, by Article 86 (d), section 2 of the Act and regulation 93(1), all election materials, including ballot boxes, ballot papers, counterfoils, information technology equipment for voting, seals and other materials, are to be retained in safe custody by the returning officers for a period of three years after the results of the elections have been declared, unless required in proceedings in court.
Court of Appeal Declaration:
It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters’ will. The counting of the votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion. By Article 86 of Constitution, the IEBC is enjoined to ensure that—
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer.”
“It is, in our view fallacious and flies in the face of the clear principles and values of the Constitution to claim that the chairperson of the appellant can alone, at the national tallying centre or wherever, purport to confirm, vary or verify the results arrived at through an open, transparent and participatory process as we have already set out”- Court reprimanded IEBC
Article 138(3)(c) buttresses this argument. It stipulates that;
“(3) In a presidential election—
(c) after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”
The Court’s interpretation of this Article is that the IEBC, which is represented at all the polling stations, constituency and county tallying centres can only declare the result of the presidential vote at the constituency tallying centre after the process i.e. after tallying and verification of final results at the polling stations.
It is equally instructive that regulation 83(3) of the Election Act recognizes the finality of the results declared at the constituency. It states that;
“83(3) The decisions of the returning officer on the validity or otherwise of a ballot paper or a vote under this regulation shall be final except in an election petition”.
By dint of section 39(1) of the Election Act, the IEBC is required to declare and publish the results immediately after the close of polling.
The role of the Chairperson of the IEBC is circumscribed. Article 138 of the Constitution deals with events at the polling stations where votes are counted, tallied, verified and declared.
It is important to observe that reference to the IEBC in Sub Article (3)(c) is not to be construed to mean the chairperson of IEBC but rather, the returning officers who are mandated, after counting the votes in the polling stations, to tally and verify the count and declare the result.
At the very tail end of this process, in Article 138(10) the chairperson then declares the result of the presidential election, and delivers a written notification of the result to the Chief Justice and to the incumbent President. That is how circumscribed and narrow the role of the chairperson of the IEBC is.
The High Court annulled Section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) on 7th April 2017 after finding to be inconsistent with the Constitution. The purpose for which section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) were promulgated or made have the effect of infringing constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability. And therefore the Court found them null and void.
There is no law that empowers the chairperson of the IEBC, as an individual, to alone correct, vary, confirm, alter, modify or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres.
Such would be an illegal and illegitimate power. It would introduce opaqueness and arbitrariness to the electoral process-the very mischief the Constitution seeks to remedy.
It could well be tantamount to a serious assault on the will of the people of Kenya and an impermissible breach of the Constitution.
It is envisaged in Article 86 of the Constitution that for the purpose of conducting an election the IEBC will be represented at the polling stations and constituency tallying centres by the presiding officers, and the returning officers, respectively, who are appointed by the IEBC.
They are in every respect employees of the IEBC and its agents in the eyes of the law.
Consequently, IEBC is not the chairperson and Commissioners. It is a corporate body established by law.
Members and employees of the IEBC are bound by a code of conduct. In any case apart from the offences related to voting, or any other election-related offences committed by members or employees of the IEBC created under the Election Offences Act, section 30 of the Independent Electoral and Boundaries Commission Act makes it an offence for a member or employee of the appellant, to knowingly subvert the process of free and fair elections.
Accuracy of the vote count is fundamental in any democratic election. Voter turnout determines the outcome of any electoral contest.
Numbers are therefore not only unimpeachable, but they are everything in an election.
The lowest voting unit and the first level of a declaration of presidential election results is the polling station.
The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.
The responsibility of the IEBC to deliver a credible and acceptable election in accordance with the Constitution is so grave and so awesome that it must approach and execute it with absolute accuracy, probity and integrity.
The IEBC must in all its dealings be truly above suspicion and command the respect of the people of Kenya for whom it acts. Much depends on it, indeed the present and future of the country.
Election 2022, IEBC and Electoral Reforms
Electoral reforms in lead up to the 2022 general election must be aimed at reinforcing the credibility of elections with a view to ensuring the full benefits of democracy, which include peace and security, inclusive development and the respect of human rights and the rule of law.
The 2017 highly polarized and disputed election outcome demonstrated how election, which is meant to promote stability and facilitate the peaceful transfer of power, can become divisive if the process is not handled professionally, transparently and with integrity.
One key lesson Kenya is learning is that elections alone are not enough, even if all technical and organizational procedures are respected.
The reason is simple: democracy is not just about legality, critical though, the rule of law is for a peaceful society; it is about legitimacy. Elections must offer genuine choice.
The challenge facing nascent democracy like Kenya is to ensure that elections are couched in a democratic spirit, and backed up by strong institutions that can ensure and sustain electoral integrity.
A number of structural problems need to be addressed to prevent future Kenya elections from being divisive, problematic and dangerous.
Prior to the 2017 general elections, the electoral reform process was undertaken extremely close to Election Day.
This resulted in a compressed timeframe that put extremely high levels of operational pressure on the IEBC.
The short time frame for implementation of electoral reforms led to electoral forensics showing serious election fraud with even scarped or cleaned-up data.
This further enhanced state capture that has systematically been eroding democratic processes, which as a result, has promoted the status quo making it hard for the reforms to be fully implemented.
While significant progress has been made in bringing precarious political stability through the enactment of the Constitution of Kenya 2010 and setting up various independent constitutional bodies, these are only a few but major steps to achieving the desired democratic election goals.
There are recommendations to ensure that the electoral reform process is undertaken with serious intent and that results are seen. The recommendations include:
- Actions are taken to strengthen the resilience of constitutionally independent institutions involved in elections, to preserve checks and balances in the electoral process. The IEBC’s independence and accountability be strengthened through greater financial autonomy and the appointment of future chairpersons and commissioners through a merit-based, multi-stakeholder selection committee. The quorum for commissioners’ meetings, as well as the decision-making majority, be increased to promote institutional cohesiveness and consistency. Plenary meeting decisions be required to be immediately publicly available.
- IEBC should be reformed to restore public confidence, credibility and integrity. The problem is not the Constitution but how the IEBC Act and recruitment of the personnel is designed which allows gross political interference. There is a need for the retention of a constitutionally established Independent Electoral and Boundaries Commission (IEBC) in line with Article 88 of the Constitution of Kenya. However, IEBC must be fully transformed to guarantee its structural, operational and funding autonomy. There is a need for lean and professional IEBC that can withstand the test of time. It must be an institution that creates a situation of predictability and certainty with Kenya electoral cycle). The current IEBC has very weak (Constitutive Act problem) and is vulnerable to interference and manipulation. The IEBC Commissioners should only conduct the function of the oversight and policy while Secretariat is strengthened and devolved to the Constituency for proper management of electoral and election processes in accordance with law and Courts’ decisions.
- As per the Constitution of Kenya 2010 read together with landmark 2017 High Court and Court of Appeal rulings Courts’ decisions in 2017 that the election’s results with finality are those counted, verified and announced at the Polling station and Constituency Tallying Center respectively, devolve and enforce watertight election management processes at the polling station and constituency tallying centre. The Court of Appeal made a far-reaching ruling in 2017 that the results in each of the 290 returning officers are final. This means that the presidential results announced at the constituency level will be final and all that will be done at the National Tallying Centre is the addition of the results announced at the constituencies. The court said that the section of the law that gives IEBC or its Chairperson powers to make any alterations to the results is contrary to the provisions of transparency and accuracy. It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters’ will. The judges pointed out that it is an offence for any of its employees, officials or commissioners to knowingly subvert the election process and that one is liable to imprisonment for a period of up to 10 years. They also noted that Returning Officers are required by law to retain the tools used in announcing election results for a period of three months and that one can be fined a maximum of Sh500,000 for interfering with or mutilating poll materials.
- Promote internal party democracy through stronger enforcement powers for the IEBC and the Office of the Registrar of Political Parties. Including in regard to candidate nominations and representation of marginalized groups.
- Require the Office of the Registrar of Political Parties to publicly report on parties’ compliance with gender requirements and on the application of penalties. In addition, establish requirements for parties to increase the proportion of persons with disabilities in party leadership positions and running as candidates, and to publicly report on this and on their policies and disabilities.
- The Parliament operationalize the Election Campaign Financing Act to regulate the amount of money received and spent by candidates and political parties during an election or referendum. This should strengthen oversight mechanisms for political party financing to include more specific monitoring requirements by the Office of the Registrar of Political Parties of parties’ income and expenditure including during election campaigns and accompanying transparency provisions. Strengthen the ban on public resources being used for campaigning.
- The IEBC develop a voter registration plan based on various recommendations including formalized, structured inter-institutional collaboration and development of a strategy for the removal of names of deceased voters. Also, research is conducted on possible future integrated systems involving other agencies responsible for population databases. Further, statistics from electronic identification devices is recorded together with the number of people who voted by manual procedures, as well as ballot reconciliation data.
- Legal requirements are introduced for governing election management at the polling stations to include prompt publication of disaggregated results for all elections, as well as clear provisions for electronic and manual results transmission. This is so as to enable consistent application and confidence in the declared outcomes. Further, the law must make it mandatory for the Presiding officer and Returning officer to publicly announce that results that have been verified, authenticated and confirmed both at Polling Station And Constituency Tallying centre to enhance transparency, integrity and public confidence in election results. The media should be allowed to announce and publish confirmed real-time election results at the polling station. This is part of enhancing election transparency.
- Strengthen the mechanism for enforcement of the Election candidates’ integrity, ethics and eligibility. No lawbreaker would be allowed to become a lawmaker. Further, all election candidates must file sworn affidavits in detail on their tax returns, wealth and property declaration, financial probity, and background records.
- Establish shorter timelines for prosecutions of electoral offences, with requirements for regular updates by the Office of the Director of Public Prosecutions and other agencies involved.
- The Parliament should promptly review the electoral system and its impact on the political participation of women and inclusivity in a broader sense, and reform as appropriate for compliance with the constitutional two-thirds gender principle for elective positions.
- Law must fully prohibit the involvement of civil servants and security officers in electoral matters unless with direct IEBC supervision and permission. There exist solid evidence that top civil servants and security personnel have been major players in perpetuating electoral malpractices and manipulation with the intent of determining the election outcome of their choice.
The writer is Director, ICPC and, a Convener, Linda Katiba Movement Twitter @NdunguWainaina