Questions arising from changes in Election Act

The Election Laws (Amendment) Bill focuses on two areas. First, it seeks to make changes in the leadership of the Independent Electoral and Boundaries Commission (IEBC).

Second, the bill proposes changes to the laws governing the actual conduct of elections.

As regards the institution of the IEBC, the bill proposes an expanded definition of the term “chairperson” to include, where the chairperson is absent, the vice chairperson, or any other person acting as the chairperson, if both the chairperson and the vice chairperson are absent.

Currently, the IEBC Act stipulates that the chair of the commission shall be a person qualified to hold the office of judge of the Supreme Court.

IEBC CHAIR

The bill proposes to replace this provision with one stipulating that the IEBC chair should be a person with more than 15 years’ experience in any relevant field, and not just law.

Without these amendments, Wanyonyi Chebukati, as the sole legally qualified member of the IEBC, is the only one currently qualified to become its chair.

If this amendment is successful, it will pluralise this position and make it possible for most of the remaining commissioners to also qualify for appointment.

The approach by the Constitution is to confer roles on the IEBC corporately, rather than on any of its individual officials. Thus, in its corporate capacity, the IEBC “is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution.”

FUNCTIONS

As a departure from the collective approach, the Constitution confers two functions on the chair of the IEBC as an individual actor.

First, the Constitution requires the IEBC chair, as an individual, to declare the results of the presidential election. This is the basis for regarding the IEBC chair as the returning officer for the presidential election.

Secondly, the Constitution individually requires the chair of the IEBC “to deliver a written notification of the result to the Chief Justice and the incumbent President.”

To the extent that the Constitution vests these two roles on the IEBC chair individually, the roles cannot be delegated to any other person through ordinary legislation.

Ordinary legislation which purports to make it possible for the vice chair or any other member of the Commission to play these roles, would be offensive to the Constitution, and a court of law is likely to declare such legislation to be null and void.

HIDDEN MENACE

Whether or not the law required it, the chairs of the IEBC and its predecessor commissions have been lawyers.

There is a hidden menace in this proposed amendment, especially if considered with another proposal that the bill contains, which proposes that in the absence of the chair, the vice chair shall act as chair of the commission until a replacement is appointed.

A further proposal in the bill will lower the quorum for meetings from five to “half of the existing members of the Commission”, completing the picture that sudden absences from the commission are contemplated in the coming days.

A member of the IEBC, Roseline Akombe, has recently expressed fears about her safety.

REPLACEMENT

Soon after the IEBC declared the results of the presidential election last month, Ms Akombe was held up at the airport as she left the country on a trip to the United States.

While the speculation that she would not be returning to the country has proved unfounded, the insecurity which a number of the commissioners feel will be compounded by a bill whose provisions seem to be laying the groundwork for their replacement.

Looked at as a whole, these provisions are no more than a poorly concealed stratagem against the IEBC, whose independence they will significantly undermine.

The second set of amendments address the management of elections.

RESULTS TRANSMISSION

The bill proposes to change the law governing the transmission of election results, so as to stipulate that results shall be transmitted both electronically and manually.

The provision that is to be repealed formed part of the arrangements arising from the joint parliamentary process of 2016.

Under the new proposal, where there is a discrepancy between the electronically transmitted results and the manual results, the latter shall prevail.

Further, failure to publish the electronic results in an electronic format shall not invalidate the results as announced.

The use of technology in the transmission of results was first suggested by the Kriegler Commission in the wake of the 2007 violence.

TECHNOLOGY

The promotion of technology in the management of elections represents a realisation that recent electoral failures have to do with the tallying and transmission of results.

The place of technology in the transmission of results occupied a large part of the preparations that went into the 2017 presidential election.

The current law, as well as the promises that the IEBC made regarding the use of technologies in results transmission, was the product of a very difficult negotiation.

While not commenting on the validity of the proposals that now seek to relegate technology in the transmission of results in favour of a manual system, the fact that the Jubilee government can take unilateral decisions on such a delicate matter is most astounding and is naked affront on the opposition.

NON-COMPLIANCE

Another provision in the bill seeks to address an issue that first arose in the 2013 presidential petition regarding the effect on non-compliance with the law governing elections.

The proposed intervention is a requirement that non-compliance with the law governing elections shall not affect the election if the election was substantially conducted in accordance with the law, and the non-compliance did not affect the results.

This amendment is to be achieved by replacing the word “or” with “and” in the text of the law. This tiny word change comes with very profound consequences.

In effect, the new legal standard will be that courts of law will not be able to annul the results of an election however badly conducted, unless the petitioner is able to show, first, that the election was not conducted in accordance with the applicable law, and, second, the non-compliance had an effect on the results.

Currently, the Elections Act provides that non-compliance with a written law when conducting an election does not invalidate the election, if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of that election.

COMMONWEALTH LAWS

An equivalent provision found in the laws of several Commonwealth countries, for example, section 146 (1) of Nigeria’s Electoral Act of 2006, was judicially interpreted by the English Court of Appeal in the leading case of Morgan v Simpson. Kenya’s Supreme Court cited this case in 2013 and also in 2017.

The substance of Morgan v. Simpson is that if an election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether or not the result was affected.

Secondly, if the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election.

Third, even though the election was conducted substantially in accordance with the law as to elections, if there was a breach of the rules or a mistake at the polls which affected the result, then the election is vitiated.

HIGHER THRESHOLD

The proposed amendment seeks a higher threshold for vitiating an election by requiring proof of non-compliance, and also proof that the non-compliance had an effect on the results. There are two possible concerns.

First, it is an important amendment that could have been the subject of wider consultation and not something inserted on the eve of a fresh election.

Secondly, it would be interesting to know how the amendment measures against the constitutional requirement that the voting system must be “simple, accurate, verifiable, secure, accountable and transparent.”

The last proposal is an amendment to the effect that “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”.

This amendment responds to, and might have covered for, the forged forms that the IEBC produced in court.

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