The Election Laws (Amendment) Bill, 2017

 

THE ELECTION LAWS (AMENDMENT) BILL, 2017

A Bill for

 

AN ACT of Parliament to amend election-related laws and for connected purposes

 

ENACTED by the Parliament of Kenya, as follows-

 

    1. This Act may be cited as the Election Laws (Amendment) Act, 2017 and shall come into force upon publication ill the Gazette.
  1. The Independent Eletoral and Boundaies Commission Aet, 2011·iS amended in section 2 by deleting the definition of the term "chairperson" and substituting therefor the following new definition-:-

"chairperson" means the chairperson of the Commission appointed in accordance with Article 250(2) of the Constitution and, in the absence of the chairperson, the vice-chairprson, or such other person acting as the chairperson in the absence of both the chairperson and vice-chairperson.

  1. The Independent Electoral and Boundaries Commission Act, 2011 is amended in section 6 by-
  1. deleting subsection (1) and substituting thereforthe following new sub section -

"(1) A ' person shall be qualified for appointment as the chairperson of the Commission if the person - ·

    1. holds a degree from a recognized university in public administration, public finance, governance, electoral management, social science, or law;
    2. has proven experience in any ' of the fields specified in paragraph (a) of not less than fifteen years;
    3. meets the requirements of Chapter Six of the Constitution";
    4. inserting the following new subsections immediately after subsection (1)-
 

"( 1A) In the absence of the chairperson for any reason, the vice-chairperson shall assume the duties of the chairperson and exercise the powers and responsibilities of the chairperson until such time that another chairperson shall be appointed.

 

(l B) In the absence of the chairperson and the vice-chairperson, members of the Commission shall elect from amongst themselves one of their number to act as the chairperson and exercise the powers and responsibilities of the :chairperson until such time that another chairperson shall be appointed".

  1. The Independent  Electoral and Boundaries Commission Act, 2011 is amended in the Second Schedule, by -
  1. deleting the' word "five members of the Commission" appearing in paragraph 5 and substituting therefor the words "half of the existing members of the Commissfon, provided that the quorum shall not be less · than three members';;
  2. deIeting paragraph 7 and substituting therefor the following new paragraph 7 -

"7. Unless a unanimous decision is reached, a decision on any matter before the Commisson shall be by a majority of the members present and voting'.

  1. The Elections Act, 2011 is amended by deleting section 29.
  2. Section 39 of the Elections Act, 2011 is amended by -
  1. deleting subsection (1C) and substituting therefor the following new subsection

"( 1C) For purposes of a presidential election, the Commission shall -

    1. electronically and manually transmit the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;
    1. tally and verify the results received at the constituency tallying centre and the national tallying centre;
    2. publish the polling result forms on an online pµblic portal maintained by the Commission; ·
  1. inserting the following new subsections immediately after subsection (lC)-

"(lD) Where there is a discrepancy betwen the electronically transmitted and manually transmitted resullts, the manually transmitted results shall prevail.

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

"(IF) The Commission shall, to facilitate public information, establish a mechanism for the live-streapiing of results as announced at polling stations, and the results so streamed shall be for purposes of public information only and shall not be the basis for a declaration by the Commission";

  1. renumbering subsection (lD) as subsection (lG);
  2. in subsection (2), by deleting the words "may announce the provisional results of an election" appearing immediately after the word "Commission" and substituting therefor the words "shall have received the results transmitted in accordance with this Act";
  3. in subsection (3), by deleting the words "provisional and" appearing before the words "final results".

7; The Elections Act, 2011 is amended in section 44 by -

  1. deleting subsection (5) and substituting therefor the following new subsection -

"(5) The Commission shall, in consultation with the relevant agencies, institutions and stakeholders, make regulations for the better carrying into effect the provisions of this section";

  1. deleting subsection (6);
  2. deleting subsection (7);
  3. deleting subsection (8).
  1. The Elections Act, 2011 is amended by deleting section 44A and substituting therefor the following new section-

44A. Notwithstanding the provisions of section 44, the Commission may put in place a complementary mechanism for identification of· voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commision complies with the provisions of Article 38 of the Constitution.

 

  1. The Elect!ons Act, 2011 is amended in section 83 by- . .
  1. ·renumbering the existing provision as subsection (1); .
  2. deleting the word "or" appearing immediately before the words "that the non-compliance;' in the renumbered subsection (1) and substituting therefor the word "and";
  1. inserting the following new immediately after the renumbered (1)-
  1. "(2) Pursuant to section 72 of the Interpretation and General Provisions Act, a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead" 10. The Elections Act, 2011 is amended by inserting the following new section immediately after section 86-

 

 86A. ( 1) Where, pursuant to Article 140(3) of the Constitution, a presidential election is invalidated by the supreme court on a petititon, the commission shall publish a notice in the gazette, within seven days fro  the determination of the court ---

  • a. indicating that the presidential election has been invalidated and that no candidate. has been elected as president
  •  
  • b. announce the date for fresh election pursuant to Article 140(3) of the Constitution;
  •  
  • (c) publish the names and political . parties of the candidates to participate in the fresh election:
  •  
    1. The candidates to participate in the fresh election pursuant to Article 140(3) shall be determined by the nature of the petition that invalidated the original election, as follows,- 
  1. where the petition challenging the election was filed by the runner-up, candidates for the fresh election shall be confined to the petitioner and the president-elect whose election was annulled;
  2. where the petition was filed by more than one candidate who had participated in the original election, the petitioning candidates and the president-elect may participate in the fresh election;
  3. where the petition was filed by a person or persons who were not candidates in the original election, then each of the candidates in the original election may participate in the fresh election;
  4. no other candidate other than those envisaged in paragraph (a), (b) or (c) shall be eligible to participate in the fresh election.
    1. The Commission shall not conduct fresh nominations for a fresh election pursuant to Article 140(3) of the Constitution.
    2. An eligible candidate for an election pursuant to Article 140(3) of the Constitution may withdraw from the election by notice in writmg to the Commission, and-
  1. where there are more than two remaining candidates in the election after the withdrawal, the election shall proceed as scheduled;
  2. where only one candidate remains after the withdrawal, the remaining candidate shall be declared elected forthwith as the President-elect without any election being held.

 

 

  1. The Election Offences Act, 2016 is amended by inserting the following new section immediateiy after section 6-

 6A. Notwithstanding any other provision in this Act or any other written law, a presiding or returning officer in an election who, in relation to the prescribed document containing the results of the election-

    1. knowingly fails or refuses to sign the document;
    2. knowingly fails to complete the document; or
    3. willfully submits an incomplete document;
    4. wilifully alters or falsifies a document,

commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding five years;

 

 

MEMORANDUM OF OBJECTS AND REASONS

The principal object of this Bill is to amend the Independent Electoral and Boundaries Commission Act, 2011 (No. 9 of 2011), the Elections Act, 2011 (No. 24 of 2011) and the Election Offences Act, 2016 (No. 37 of 2016) to provide for the proper conduct of the affairs and business of the Independent Electoral and Boundaries Commission, and for effective management of elections.

This Bill is a Bill not concerning county governments within the meaning of Article 110 of the Constitution .

The enactment of this Bill shall not occasion additional expenditure of public funds.

 

This Bill is a Majority Party-sponsored Bill. Dated the 22nd September, 2017.


Created on Oct. 3, 2017, 2:27 p.m.
Submitted by: Dokeza Masta

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