Consequential Elections Bill sails through second reading at National Assembly

The National Assembly gave the nod for the Elections (Amendment) (No.2) Bill, 2024 which will alter various aspects of how elections are held in the country, should it be passed by the House, to sail through the second reading stage.

The Bill proposes a raft of amendments to the Elections Act 2011, which, if implemented, will have far-reaching consequences on processes such as how electoral results are declared and transmitted, the registration of voters, nomination of candidates within political parties, the cost of elections and even the number of people allowed to vote at each polling station.

If given the nod by the House, the Bill will also impact the constitutionally provided process of recalling a Member of Parliament.

The Bill has already been approved by the Senate and is currently before the National Assembly for concurrence.

During the debate of the Bill, lawmakers from across the political divide elicited mixed reactions over proposals contained in the Bill, casting aspersions on its fate.

“I've been looking at what's being proposed in this Bill, and there's nothing that we didn't know we might need to change in 2022, 2023, 2024, or even 2025. Why must the IEBC wait until the tail end of a Parliament to bring these amendments? You know, the amendments might be good, but people might read sinister motives into them. Why so late in the day? Where have they been that these laws concerning elections are always brought at the tail end of Parliament?” posed Ugenya MP David Ochieng.

And while a section of MPs opposed a proposal to increase the number of people eligible to vote at a single polling station from a current 700 to 1000, for instance, another supported the proposal calling for the scrapping of a degree requirement for MPs and MCAs.

“The Bill seeks to strengthen the transmission and declaration of election results so that our electoral process remains above board and is clear to Kenyans, and so that the results declared at the polling station, as envisioned by the Constitution and our electoral laws, become the final results,” said Leader of Majority Kimani Ichung’wah.

Notably the Bill seeks to give effect to some of the recommendations and views of the public that were submitted during the national dialogue discourse on the issues of electoral justice and related matters.

Some of its key recommendations  include one to ensure that Presidential elections are tallied and announced first before any other elective position.

The Bill proposes to repeal and replace section 39 of the main Act which provides for determination and declaration of results and substitute it with a new section.

The new section proposes that results at the polling station shall be final, and the presidential election shall be tallied, announced and declared and electronically transmitted before all other elective positions.

Further, the new section has omitted provisions providing for the requirement for IEBC to establish a mechanism for the live-streaming of results as announced at polling stations to facilitate public information.

The Bill also omits provision such as that that dictates that where there is a discrepancy between the electronically transmitted and the physically delivered results, the result which is an accurate record of the results tallied, verified and declared at the respective polling station shall prevail.

It also omits the provision that states that any failure to transmit or publish the election results in an electronic format shall not invalidate the result as announced and declared.

The Bill also proposes to amend the Act by inserting a new section 38A to provide for the designation of polling stations by the IEBC and publishing them in the Gazette at least three months before the date of any election. Further, the new section provides that elections shall not be conducted in a place not designated as a polling station.

It further proposes to insert a new section 82A to provide for access to information held by the IEBC. Where such information is required for purposes of scrutiny of votes, the information shall be provided within three days in the case of a presidential election, and within seven days in the case of all other elective positions.

The Bill proposes to amend section 34 which provide for nomination of party lists members by inserting to provide that a person can only be nominated as a member of a county assembly if such a person is a registered voter in a ward within a county the person is to be nominated, and the need to ensure equitable nominations.

Moreover, it calls for an amendment to section 85A which provides for appeals to the Court of Appeal in respect of membership of the National Assembly, Senate or the office of county governor by deleting the requirement that appeals shall be on matters of law only, and inserting a new subsection to provide that the decision of the Court of Appeal shall be final. For the matter on the validity of a member of the county assembly, the decision of the High Court on an appeal shall be final.

At the same time, the Bill proposes to amend section 44 of the Elections Act which provides for technology to provide that the Commission shall ensure that intellectual property to the technology is vested in IEBC, and that a supplier of technology to be used in elections shall not have been found guilty of violating any procurement law or committed a crime anywhere in the world. Additionally, amendment seeks to provide for access to the technology, accessible and available for scrutiny, subject to the applicable laws.

The Bill also proposes that Parliament shall appoint an independent firm to carry out an evaluation of the electoral process after a general election.

The evaluation shall include a review of the legal framework, processes and costs associated with the electoral process. The proposed new provisions require the preparation of a report for submission to Parliament within ninety days of the appointment of the independent firm.

Interestingly, the Bill also delves in what has proven to be the controversial topic of recalling members of Parliament. It proposes to delete section 45 of the Act which provides for conditions under which a Member of Parliament may be recalled.

It argues that “these provisions were declared unconstitutional in Katiba Institute & another v Attorney General & another Constitutional Petition No. 209 of 2016 [Formerly Kisumu Petition Number 9 of 2016],” reads the Bill.

It also proposes to delete the provisions that required that a petition to recall a member of parliament must be signed by a petitioner who was registered to vote in the election in respect of which the recall is sought and that the petition must be accompanied by an order of the High Court.

Further, it seeks to scrap the provision that presently provides that a recall election shall be valid if the number of voters who concur in the recall election is at least fifty percent of the total number of registered voters in the affected county or constituency- noting that it was declared unconstitutional by the courts.

And during debate on the floor of the House, MPs expressed mixed reactions, with a promise from both sides of the political divide promising to introduce further amendments to the Bill.

Baringo Women rep Florence Jematiah opposed the proposal to scrap degree requirements for MPs and MCAs.

“On the literacy level, where it says the education requirement for registration as a candidate for election as an MP or any other County Assembly position was declared unconstitutional, this is putting a rope around our necks and killing the importance of education. Honestly, we already have problems in the counties today. Literacy level is a very integral component of leadership, and it is one of the reasons we have problems in executing policies, not only in the counties but also in the national government,” she stated.

A section of lawmakers also opposed the Bill pointing out that it would lead to an increased cost of elections.

“I think what we should look at in this Amendment Bill is the additional costs it is placing on us per polling station. If you look at it that way, you will realize that it is going to cost us more,” said MP Gideon Ochanda.

Molo MP Kuria Kimani said, “We use Sh2,600 to print an A4 sheet of paper for a ballot paper? It is incomprehensible. It is a waste of public funds, and there is no excuse for how much we spend on it. The JLAC committee must look into these costs and ensure that elections do not have to be this expensive, especially because we have many other priorities as a country.”

Kikuyu MP Ichung’wah added, “What public good do we get out of these expensive elections? We go into expensive elections, and sometimes we end up with bad leaders. In the recent past, agriculture, education, and roads, in and infrastructure, have been the heaviest spenders of public resources. In the next budget, the heaviest spender will be the IEBC because of the elections.”