It will not be possible to change the results of a presidential election as announced at the polling station if the Elections (Amendment) Bill currently before Parliament is passed.
If enacted, the new law will also determine how the presidential election results on August 9, 2022, General Election will be relayed.
The Bill proposes to ban live streaming of the presidential results either by television or online platforms.
Under the current law, the electoral commission is expected to provide information and establish a mechanism for the live streaming of results as announced at the polling stations.
A bid by the Leader of Majority Amos Kimunya to shorten the publication period of the Bill from 14 days to seven was defeated after the UDA side voted against it polling 62 votes to 43 of the Pro Handshake team.
The Elections (Amendment) Bill 2021, also seeks to have the decision of the High Court on a petition filed against a governor heard and dispensed off by the High Court while that of a Member of the County Assembly (MCA) be determined by a Resident Magistrate’s court.
Further, the Bill seeks to safeguard the transmission of the presidential results from the polling stations to the national tallying centre.
The law provides that Presiding Officers appointed by the Independent Electoral and Boundaries Commission (IEBC) electronically transmit the image of the relevant form containing the presidential results to the Constituency Returning Officer (CRO).
The CRO is then required to collate the results, feed them into the relevant form, send the image and physically deliver the forms to the national tallying centre. This requirement has, however, been marred with credibility issues.
The thorny issue of the presidential results announced at the polling stations not tallying with those transmitted to the national tallying centre landed in the Supreme Court in the last election. To cure the malaise, the court declared that the results announced by returning officers were not subject to review and will stand as the result.
The Bill further recommends that a Presiding Officer shall electronically transmit the image of the results in the prescribed form to the national tallying centre.
“The presiding officer shall then deliver the results in person from the polling station to the constituency tallying centre. The Constituency Returning Officer shall then collate the results in the prescribed form and deliver them in person from the polling station together with the collated form to the national tallying centre,” state the bill.
The Constituency Returning Officer will then transmit the tabulated results of an election of the president and deliver in person the results from his or her centre to the national tallying centre.
Under the current law, in case of an inconsistency between the electronically transmitted and the physically delivered results, the IEBC shall verify the results and the result which is an accurate record of the results tallied, verified and declared at the respective polling station shall prevail.
The Bill, however, seeks to have the requirement annulled. The bill also seeks to allow a candidate to be presented to the electorate on party primary or election ballot papers in the way in which the candidate has chosen to familiarise himself or herself to the electorate.
Currently, the law only permits the use of a candidate’s official name as it appears in the register of voters and the candidate’s identification documents.
A candidate who wishes to have his or her popular name included on a ballot paper has to go through the lengthy process of officially changing his or her name through the procedures set out under the Registration of Persons Act, Cap 107, the Registration of Documents.
Deliver in person
According to the originators, the ultimate goal of an election is to ensure the electorate choose their preferred leaders in a free and fair environment. This becomes an important aspect of a free and fair election.
“It ensures that a voter easily identifies his or her preferred candidate on a ballot and therefore votes in the way he or she intended. Candidates should, therefore, not be duly restricted in the way they present themselves to the electorate on the ballot and other election-related material as this hinders the realisation of the candidates’ right to, vote without unreasonable restrictions, a contest in an election and the electorate’s right to free expression of their will, as contemplated under Article 38 of the Constitution.
This Bill, therefore, seeks to provide for the inclusion of a candidate’s popular name on a ballot paper while at the same time safeguarding the sanctity of the electoral process.
Further, to ensure that this flexibility does not prejudice a free and fair election in any way, the electoral commission would be required to approve the use of a popular name in an Election.
A further amendment also seeks to reduce voters hopping from one voting station to another. The Bill states that one needs to be a resident, employed, carrying on a business or possess land or a residential building six months to the time of seeking the transfer.