TOROITICH: How Elections Bill sets the stage for rigging

The Elections (Amendment) Bill, 2022 proposes to make amendments to the Elections Act, 2011 which will fundamentally change the electoral process.

It also sets the stage for rigging and electoral malpractices. This is how.

The amendment tamppers with political rights guaranteed under Article 38 of the Constitution, which provides for the political rights of every citizen without unreasonable restrictions to be registered as a voter.

But Clause 5 of the Bill seeks to stifle these rights by providing that “A voter may not transfer his or her registration unless, at the date of the application to transfer the registration, the voter has been — (a) ordinarily resident; (b) carrying on business; (c) employed or (d) possessed land or a residential building."

The Bill delinks the nomination process from compliance with the Constitution and the Elections Act. This is because Clause 2 amends the definition of the term of nomination.

The Elections Act defines the term nomination as submission to the Commission of the name of a candidate by the Constitution and the Act.

The Bill proposes to depart from this definition to mean the process through which a political party elects or selects its candidates for elections. This arguably delinks the nomination process from being conducted by the Constitution and the Act.

The amendment also negates the parties’ nomination process.

Clause 2 introduces a new definition of registration of a candidate, which means the process through which a person applies to the Commission to contest in an election.

Whereas this may appear as a minor amendment, it is worth noting  the clause also deletes the definition of the term nomination day which, means the day gazetted at least 60 days before an election by the Commission.

It abolishes party nomination rules and membership list as clauses 14 and 15 amend sections 27 and 28 of the Act by deleting reference to the nomination rules and membership list.

It substitutes it with certified copies of the party’s nomination rules issued by the Registrar of Political Parties as well as a certified copy of membership list.

Notably, Section 28 of the Act requires a political party to submit to the Commission a membership list of the party in the case of a general election, at least 120 days before the date of the election. The Bill proposes to reduce this timeline to 90 days.

Clause 16 of the Bill seeks to negate free and fair elections by removing the following requirements:

(a) That the Commission shall, upon the request of a political party, conduct and supervise the nomination of candidates by the political party for presidential, parliamentary or county elections by Article 88 of the Constitution.

(b) That a political party shall, at least 21 days before the nomination day, submit to the Commission the names of the persons contesting in its party primary and the date of its primary.

(c) That the Commission shall publish, in the Gazette the names of the persons contesting in a party primary and the date of the party primary within seven days of receipt of the names of candidates.

It removes the requirements for nomination of independent candidates.

Section 33 of the Act provides that independent candidates shall be selected in the manner provided for in the Constitution and by the Elections Act.

The section further provides that the Commission shall publish in the Gazette, the names of persons intending to contest in the election as independent candidates at least 14 days before the nomination day.

TRANSMISSION OF RESULTS 

Section 39 (1C) of the Act provides that in a  presidential election, the Commission shall electronically transmit and physically deliver the tabulated results for the president from a polling station to the constituency tallying centre and to the national tallying centre.

Interestingly, Clause 19 also deletes the following requirements in the Act:

(a) That where there is a discrepancy between the electronically transmitted and the physically delivered results, the Commission shall verify the results. The result which is an accurate record of the results tallied, verified and declared at the respective polling station shall prevail.

(b) That any failure to transmit or publish the election results in an electronic format shall not invalidate the result as announced and declared by the respective presiding and returning officers at the polling station and constituency tallying centre, respectively.

(c) That the Commission shall, to facilitate public information, establish a mechanism for the live streaming of results as announced at polling stations. The results so streamed shall be for purposes of public information only and shall not be the basis for a declaration by the Commission.​​

Clause 21 of the Bill shall deny access to justice by candidates seeking settlement of disputes by IEBC, including disputes relating to nominations.

The Bill seeks to put a timeline limitation for lodging such a complaint to 48 hours after the last day of registration of candidates.

The introduction of the timelines for filing a dispute shall deny candidates access to justice relating to nomination disputes.

Finally, Clause 22 of the Bill seeks to provide that the decisions of the High Court on election petitions filed in the magistrates courts shall be final.

his shall deny aggrieved persons access to justice by disallowing them from appealing the decisions of the High Court. Arguably, Clause 22 of the Bill is unconstitutional as Article 50 of the Constitutional on fair hearing provides that a person has a right of appeal.

Benedict Toroitich is a communication expert and comments on topical issues

Email: [email protected]

(Edited by V. Graham)

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