Let's fast-track electoral law reforms for a better election experience

Every five years, Kenya’s democracy undergoes a defining moment. While Kenya has made commendable strides in electoral management, one recurring lesson stands out with unmistakable clarity: Electoral reforms are most effective when they are undertaken early, deliberately and transparently, not hurried through on the eve of an election.

Unresolved legal gaps in electoral management will not disappear on their own. They resurface during election seasons as disputes, litigation and public mistrust. Fast-tracking electoral law reforms well ahead of the next general election is therefore not a political convenience; it is a democratic necessity.

Election laws govern competition, determine winners and runners-ups and form the basis for dispute resolution. When amendments are introduced too close to polling day, confusion becomes inevitable. Voters struggle to understand new rules, candidates question their fairness, election officials grapple with implementation, and courts are left interpreting fresh provisions under intense pressure.

Early reform provides room for public participation, allows institutions time to operationalise new laws, and enables the Judiciary to develop interpretive consistency. This effectively builds public trust.

The Constitution envisions recall of elected leaders as a democratic accountability tool. Parliament has legislated a relatively structured framework for recalling MCAs, setting out thresholds, procedures and safeguards.

However, there remains a conspicuous legislative vacuum regarding the recall of MPs. While constitutional provisions exist, the absence of a detailed statutory mechanism has left this area unsettled. Courts have been invited to fill the gap, a role that, while constitutionally permissible, should not substitute for clear legislative action. A harmonised, well-defined recall framework would enhance democratic accountability.

The Constitution clearly anticipates referenda as instruments of popular sovereignty. It outlines when they are mandatory and the principles governing them. Yet, there is still no dedicated referendum law to operationalise these constitutional provisions in detail.

Consequently, essential procedural questions remain unresolved. How are referendum questions structured? What thresholds apply in different constitutional contexts? How are campaigns regulated? What dispute resolution mechanisms apply?

Without legislative clarity, referendum processes risk being dominated by procedural litigation rather than substantive debate. Enacting a comprehensive referendum law would strengthen constitutional order and reduce uncertainty.

The Supreme Court has earned international recognition for resolving presidential election disputes within strict constitutional timelines. However, experience has shown that speed, while constitutionally required, can sometimes limit the court’s ability to fully interrogate evidence.

The 2013 presidential election petition remains an important reference. Some affidavits and evidentiary material were excluded due to time constraints. This outcome was lawful under the existing framework, but it exposed a structural tension between timeliness and thoroughness.

Revisiting statutory timelines without undermining constitutional principles could enhance the quality of electoral justice. Justice must be swift, but it must also be sufficiently comprehensive to inspire public confidence in its conclusions.

The law provides clear mechanisms for scrutiny of votes while remaining largely silent on scrutiny of electoral technology. You are all familiar with the issue of opening IEBC servers.

When disputes arise involving electronic systems, courts must rely on general evidentiary rules rather than tailored statutory guidance. This gap creates uncertainty and fuels suspicion, particularly in an environment where technology is often misunderstood or politicised.

Clear legislative provisions on access, audit, verification and scrutiny of electoral technology would enhance transparency and provide predictable legal pathways for dispute resolution.

Judicial decisions have consistently emphasised the centrality of polling station results in determining election outcomes. Form 34A, which records presidential results at the polling station, has therefore assumed immense legal and symbolic significance. Operational challenges persist, particularly regarding unexplained numerical discrepancies. One proposed reform is the inclusion of a specific column for stray or rejected ballots on Form 34A. This will enhance clarity, reduce disputes and strengthen the integrity of the results chain from the polling station upwards.

Misalignment between multiple electoral laws has created uncertainty, especially regarding nominations and candidate registration. Clear and harmonised definitions of nomination processes, timelines and candidate status would reduce disputes and litigation. Political parties are central to electoral competition; the law should reflect their role with precision and coherence.

One recurring area of debate concerns the process and locus of presidential results declaration. Legal and Policy experts have opined that presidential results should effectively be finalised at the constituency level, with national aggregation serving a confirmatory function. This will demystify the process, reduce suspicion and align public understanding with legal principles.

Courts have engaged aspects of this issue in past decisions, and there are recent cases in court on the same matter awaiting judicial interpretation. Legislative clarity will help stabilise expectations without pre-empting judicial authority.

Ultimately, the responsibility for electoral law reform rests squarely with Parliament, and more specifically, the Justice and Legal Affairs Committee (JLAC) in close collaboration with the IEBC Legal, Compliance and Political Parties Liaison Committee, among other stakeholders. As the committee mandated to oversee electoral legislation, JLAC plays a critical role - reviewing proposals, facilitating public participation and refining legal text.

Fast-tracking reforms means prioritising electoral bills early in the parliamentary calendar, insulating them from high-octane election season politics, and ensuring they are debated on their legal merit rather than partisan interests. JLAC should engage widely with stakeholders to deliver reforms that are both technically sound and publicly legitimate.

Public narratives often portray the Independent Electoral and Boundaries Commission (IEBC) in extremes. Contrary to popular belief, electoral management does not pause between elections. Away from the spotlight, the Commission remains a hive of continuous activity. The highly qualified, ethical and professional staff of IEBC routinely work long hours reviewing laws and systems, proposing reforms and engaging stakeholders. These are efforts aimed at sealing legal and regulatory gaps and strengthening electoral integrity.

Fast-tracking electoral reforms early allows laws to mature, institutions to prepare and citizens to understand the rules governing their democracy. In electoral matters, timing is not a procedural detail - it is the foundation of trust.