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Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

2

The Bill seeks to amend Sec. 2 of the Act i.e. the Definition Section by substituting the definition of the following words;

‘Nomination’ to mean the process through which a Party elects/selects its candidates for elections. Under the principal Act it is defined to mean the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.

Deleting the definition of the ‘Nomination day’ currently defined…in respect of an election, means the day gazzeted by the Commission as the day for the nomination of candidates for that election.

Deleting the definition of the word ‘Political Party’ to give it the meaning assigned under the Political Parties (Amendment) Act, 2021 i.e. an association of citizens with an identifiable ideology or programme that is constituted for the purpose of influencing public policy or nominating candidates to contest elections; and includes a coalition of political party/s.

‘Registration of a candidate’ process through which a person applies to the commission to contest an election.

There          was          need          to                    have comprehensiveness of definitions/motives

*Black’s Law Dictionary defines Nomination as an appointment or designation of a person to fill an office or dis- charge a duty. The act of suggesting or proposing a person by name as a candidate for an office.

The definition of a political party under Art. 260 of the Constitution, meaning an association contemplated under Part 3 of Chapter 7 (Basic requirements of a political party & legislation on political parties).

The proposed amendments were in aligned with Political Parties (Amendment) Act, 2021 and in line with the definition as encapsulated under the Constitution.

This is one of the recommendations of IEBC to the extent that the Elections Act does not use the term Party Primaries at all, the Election Laws (Amendment) Act of 2016 and 2017 use the term party primaries. It uses the term party nomination to mean registration of candidates for election. This calls for harmonization of the laws to cure

the incoherence and uncertainty.

3

Seeks to amend Sec. 5 of the Act inserting the word ‘Valid’ immediately after the words ‘identity card or a’. The principal Act, just reads a Kenyan passport.

The proposed amendment is contentious as the question of the validity of a passport was unnecessary as the same was only required to be used as a verification

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Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

document of identity and citizenship and not for purposes of travel where validity of the document would arise.

Further, considerations needed to be made to allow one to register even with a driving license, or any other legally recognised document without imposing unnecessary restrictions.

The word ‘validity ‘should be deleted. In the alternative, it should be defined to avoid its ambiguous nature in the Bill. The Bill also has to make a distinction between authenticity and validity. Who determined if the passport is authentic?

4

The Bill seeks to amend Sec. 6 of the Act by deleting Subsection 2.

Subsection 2 of the Act reads, (2) The Commission shall, within sixty days from the date of the notice for a general election, open the Principal Register of Voters for inspection for a period of at least fourteen days or such period as the Commission may consider necessary.

This essentially means that IEBC will be under an obligation to have the register opened for inspection by members of the public at all times for the purpose of rectifying the particulars as dictated in Sec. 6(1) of the principal Act.

Sec. 4 of the Election Act dictates that there be a register in respect of every polling station, ward, constituency, county and voters residing outside Kenya.

Sec. 5(1) of the Elections Act, voter registration is a continuous process.

Prior to the amendments introduced to the Elections Act in 2016, there was confusion as to the status of the Register of Voters. In

the cases of Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR and Raila Odinga & 5 Others v. Independent Electoral and Boundaries Commission & 3 Others (2013) eKLR, the court recognized that the register of voters is not a single document, but is an amalgam of several parts prepared to cater for diverse groups

of electors.

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Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

Sec. 4(2) of the Elections Act as read together with Regulation 12(3) of the Elections (Registration of Voters) Regulations, 2012 requires the Commission to compile the register of voters comprising of components under Section 4 of the Act. However, the law does not assign a name to the compiled register.

“Principal Register of Voters” Section 2(d) of the Elections Laws (Amendment) Act No.

36 of 2016 by deleting the expression ‘principal register’ and substituting it with ‘register of voters’. The intention was to cure the problem of multiplicity of registers that was experienced during the 2013 elections.

The proposed deletion of Section 6 (2) welcome. However, the wording of Subsection 1 needed to be amended to ensure that the timeframe for the opening of the Principal Register of Voters was specified and not left at the discretion of the

IEBC. In particular, the wordings “except for such period of time as the Commission may consider appropriate” needed to be deleted.

On this basis, there are two legislative options. Either the discretion bestowed upon the IEBC needs to be removed and left to the Act to define or it is left to the IEBC entirely to decide. It should not be both as it causes confusion.

There should also be a distinction between inspection             and rectification. Our recommendation is that the rectification period should be at least 1 month to the

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Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

election but the inspection period should be all through. The opening of a data portal on IEBC would be crucial towards the attainment of this and promoting trust in the Register.

5

The Bill proposes to amend Sec. 7 of the Act by insertion of Clause 3 to the effect that a voter may not transfer his/her registration on the date of application to transfer registration if the voter has been; ordinarily resident, carrying on business, employed or possess land or residential building in a constituency he intends register 6months preceding the date of application for transfer of registration.

This is to the effect that if one doesn’t qualify with the conditions introduced, then he will not be able to transfer is vote to the desired constituency of his choice.

Is this an affront to the conditions to register as a voter as espoused under Art. 38(1) (2) & (3) 83 of the Constitution?

IEBC Recommendation in its Post Evaluation Report had proposed an aamendment the Elections Act to prohibit prospective candidates from vying in electoral areas other than those in which they are registered as voters, its recommendation did not touch on voters but prospective candidates.

The proposed amendment is contentious and it contravened Article 38(1) (2) (3) and 81 of the Constitution of Kenya, it infringed on individual political rights while intending to cure a moral issue.

The Amendment should be expunged in totality.

6

The Bill proposes to amend the principal Act by deleting 8A (b) by deleting subsection 3.

Subsection 3 of the principal Act reads…for purposes of the first general election after the commencement of this section, the Commission

shall, within thirty days of the commencement

The proposed amendment is in order as it was meant for the first election after the amendment.

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of section, engage a professional reputable firm

to conduct an audit of the Register of Voters.

This has already been bypassed by events

7

Proposes to amend the Act by deleting subsection 2(a) by introducing a new paragraph …that the day or days for the registration of candidates for the presidential election.

This substitutes it with what is in the Act, in the case of a general election, at least sixty days before the date of the election.

Word ‘nomination’ removed in the proposed amendment and replaced with ‘the registration of candidates’

In line with the terminologies as used in the Political Parties (Amendment) Act, 2021.

8

Same above - Word nomination replaced by

registration – Sec. 16

This is one of the recommendations of IEBC to the extent that the Elections Act does not use the term Party Primaries at all, the Election Laws (Amendment) Act of 2016 and 2017 use the term party primaries. It uses the term party nomination to mean registration of candidates for election. This calls for harmonization of the laws to cure the incoherence and uncertainty

9

Same above - Word nomination replaced by

registration – Sec. 17

Proposal in line with the Political Parties (Amendment) Act, 2022.

10

Same above - Word nomination replaced by

registration – Sec. 19

Proposal in line with the Political Parties

(Amendment) Act, 2022.

11

Same above - Word nomination replaced by

registration – Sec. 22

Proposal in line with the Political Parties

(Amendment) Act, 2022.

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Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

12

Same above – Word nomination replaced by

registration – Sec 23

Proposal in line with the Political Parties (Amendment) Act, 2022.

13

Word nomination replaced by registration –

Sec.25

The Bill proposes to amend Sec. 24(1) by deleting subsection 1 and replacing it with,

(a) is a registered voter at the time of occurrence of vacancy.

Currently reads, is registered as a voter

*Qualifications and disqualifications for nomination as member of Parliament.

What is the difference? Registration after occurrence? Is the clause referring to nominations in the event of a by election? Is a general election an occurrence?

IEBC proposed an amendment to the Elections Act to prohibit prospective candidates from vying in electoral areas other than those in which they are registered as voters. Was this constitutional or a recommendation to deal with a morally untidy situation?

As the bare minimum constitutional requirement was that one be a registered voter, the same needed to be maintained and the proposed wordings “at the time of occurrence of vacancy” be done away with.

The voters should have the option of selecting their preferred candidate on the ballot as opposed to arbitrary restrictions that may have negative ramifications on their right to vote. This clause is unconstitutional.

14

Word nomination replaced by registration –

Sec.25

The Bill proposes to amend Sec. 25(1) by deleting subsection 1 and replacing it with,

(a) is a registered voter at the time of occurrence

of vacancy.

Currently reads, is registered as a voter

As the bare minimum constitutional requirement was that one be a registered voter, the same needed to be maintained and the proposed wordings “at the time of occurrence of vacancy” be done away with.

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Comments on Proposed Amendments/ Recommendations

*Qualifications and disqualifications for nomination as member of County Assembly

15

The Bill proposes to amend Sec. 27 by deleting subsection (1) removing the words its ‘nomination rules’ and replacing it with ‘a copy of the political party’s nomination rules certified by the Registrar of Political Parties’.

Bill proposes to insert a new subsection to the extent that a coalition political party shall within 14days of its registration submit to the Commission a copy of the coalition political party’s nomination rules certified by the Registrar of political

parties.

Proposal in line with the Political Parties (Amendment) Act, 2022.

This     should     also     include             coalition nomination rules.

16

Bill proposes to amend Sec. 28 of the Act by deleting in subsection 1 the words ‘membership list’ and substituting it with ‘a copy of the membership list certified by the Registrar of Political Parties’

It further proposes to amend Sec. 28(a) by deleting the words 120 days within which parties should submit a copy of certified membership list to 90 days.

Duration reduced by a month.

Requirement under the Political Parties Amendment Act. 2021 for parties to use certified Registers by the Political Parties Registrar.

The proposed amendments were an alignment with Political Parties (Amendment) Act, 2021.

The duration proposed was in line with the election timelines.

IEBC had proposed an amendment to Sec. 27 and 28 of the Elections Act to require the Commission to receive Political Party Membership Lists and Nomination Rules from ORPP to ensure consistency and authenticity. This has not been effected and as such parties will still be required to submit this to IEBC.

Clause

Proposed Amendments / Ramifications

Comments on Proposed Amendments/ Recommendations

17

The Bill proposes an amendment to Sec. 31

(2) of the Principal Act by deleting subsection (2) (2B) (2C) (2E) (2F) to the extent that parties no longer have an option to request IEBC to, conduct and supervise the nomination of candidates by the political party for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution.

IEBC had made a proposal to seek a repeal of Sec 31 (2) of the Elections Act to remove the conflict of interest where the Commission conducts, and supervises party primaries, then sits thereafter later to determine disputes arising in the said primaries.

The proposed amendment is welcome as indicated that IEBC could not conduct elections and adjudicate issues arising from the same elections. However, there are concerns that the nominations process will be marred with confusion and ultimately wind up as not free and fair contrary to Constitutional ideals.

18

Word ‘nomination day’ replaced by ‘the date

of registration of candidates’ – Sec. 32

As    contained    in    the    Political         Parties (Amendment) Act, 2021

19

Word nomination replaced by registration –

in the marginal notes – Sec. 33

As    contained    in    the    Political         Parties (Amendment) Act, 2021

20

Bill proposes to amend Sec. 39 of the Act by deleting subsection 1C, which reads, (1C) For purposes of a presidential election the Commission shall — (a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre; (b) tally and verify the results received at the national tallying centre; and (c) publish the polling result forms on an online public portal maintained by the Commission.

And replaces it with the requirement;

The addition of Section 39 (c) and (d) defeated the spirit of the Maina Kiai case that declared the transmission of results from a              polling       station as              final. Furthermore, the clause was contentious as it          would                occasion               delays        in        the announcement of the presidential results as the same needed to be tabulated at the Constituencies by the Returning Officers. The provision also requires the Presiding Officers to only send “images” and not “results” which is not practical. If Presiding Officers         declare        final    results         and

presidential  tallying  is  based  on  results

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Comments on Proposed Amendments/ Recommendations

• the presiding officer shall electronically transmit the image the image of the results in the prescribed form to the National Tallying Center
• the presiding officer shall deliver the results in person from the polling station to the constituency Tallying center
• the Constituency Returning Officer shall collate the results in the prescribed form and deliver the results in person from the polling station together with the collation form to the National Tallying Center
• the Constituency Returning Officer shall electronically transmit, the prescribed form, the tabulated results of an election for the president and deliver in person the tabulated results from the constituency tallying center to the national tallying center
• the Commission shall tally, verify and declare the results of the presidential election from the polling station results.

from POs, then there is no need for them to send only images.

The proposal contained in the Bill is even murkier than what was in the Act. It also increases the risk of result tampering and discrepancies between ROs results and PO images. There are concerns that there may be a deliberate failure of the electronic system to ensure that the manual transmission is used.

The provision also conflicts with clause 20

(e) which requires the commission to use results from the POs to tally, verify and declare results yet the POs will not be sending any results directly to the commission.

21

The Bill seeks to amend Sec. 44 A of the Act by inserting the words 44A and transmission of results immediately after the words identification of voters.

Introducing a new Subsection (2) to the effect that the Commission shall develop Regulations for effecting this provision.

Sec 44 A of the Act talks about having a complementary           mechanism                                       for

The contention on this clause is that with its adoption we risk having two parallel results.

It diminishes the requirement to have simultaneous transmission of results which was specifically meant to ensure there was no room for manipulation of results.