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What controversial changes in election law mean

Sunday January 15 2017

President Uhuru Kenyatta signs into law amendments to election rules at State House, Nairobi, last week.

President Uhuru Kenyatta signs the 2016 Election Laws (Amendment) Bill at State House, Nairobi, last week. PHOTO | PSCU 

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Kenyans have been kept guessing whether the electoral agency will resort to exclusive use of a manual system in the August elections should the electronic system fail.

Independent Electoral and Boundaries Commission (IEBC) and Jubilee bigwigs have maintained that the contentious 2016 Election Laws (Amendment) Bill signed into law by President Kenyatta last Monday does not advocate a manual backup.

“The law doesn’t say we go manual. But we are thinking of a procedure that will ensure your vote matters. The term manual is political and journalistic,” said IEBC chief executive Ezra Chiloba.

He said the changes do not advocate the use of a manual system of identifying voters and transmitting results as Kenyans have been made to believe.

Senate Deputy Majority Leader Kipchumba Murkomen shared the same views, saying the Opposition was engaging Kenyans in sideshows when some of the provisions in the law directly benefit them.

The most contentious amendment introduced in the original 2011 Election Act is Section 44A, which introduces a complementary mechanism for identifying voters and transmitting election results.

The IEBC is mandated, by use of the word "shall" in the law, to put in place a complementary mechanism that is simple, accurate, verifiable, secure, accountable and transparent.

But Cord and those reading mischief in the amendment have questioned why the lawmakers did not specify instances when the complementary mechanism can be used.

The Opposition, like the Kenya Chamber of Commerce, the Council of Governors and the Media Owners Association, argued that the provision is prone to abuse as it gives the IEBC discretionary powers, even when Kenyans’ confidence in the commission is still low.
Makueni Senator Mutula Kilonzo Jr, who was at the forefront in pushing his colleagues to overturn what he saw as the wrongs committed by MPs in the National Assembly, said the Opposition was not opposed to a backup system “but wants this vague amendment defined”.


He pointed out that it can as well mean exclusive use of a manual backup when the fear is that a manual system would result in ineligible voters voting, including dead people.

“The mischief is that the word complementary is not defined and there is no provision for regulations on how it will be used in case of default. The law as it is now creates a parallel mechanism,” Mr Kilonzo told the Nation on Sunday.

The senator expressed fears that MPs might have been privy to information that the Senate Legal Affairs Committee had drafted regulations that could have given an elaborate mechanism for a backup system and rushed to introduce the contentious amendment.

“The backup of the electronic technology had already been provided for in the regulations that the committee has prepared,” said Mr Kilonzo, a lawyer.

“Let us not miss the point. The issue is that this complementary mechanism must be clearly defined to make sense lest it include exclusive use of a manual backup yet the fear is that a manual system is what results in dead [people voting],” he said.

At the same time, though the lawmakers paraphrased section 22 of the Election Act that deals with academic requirements for those seeking elective office, they were clever enough to suspend enforcement until after this year’s General Election.

The new section requires both MPs and ward reps to possess a degree from a university recognised in Kenya.

They also added that the provisions of this section apply to qualifications to nominations for a party list member to ensure even nominated lawmakers are included.

The lawmakers further amended the 2013 Elections Campaign Financing Act to postpone a rigorous process for aspirants before they are cleared by the IEBC to contest in the coming polls.

“The operation of this Act is suspended and the Act shall come into force immediately after the General Election to be held in the year 2017,” reads the newly introduced section 1A.

The law required all those seeking elective positions in 2017 to register authorised people who will manage their campaign finances and campaign bank accounts by December 8.


Campaign teams that receive more money than stipulated by the IEBC are expected to surrender the balance to the electoral body to avoid penalties, which include automatic disqualification from vying for a seat.

“Cord should thank us for this provision because their party leader could have been locked out of the next election because he had not complied with the law,” said Mr Murkomen.

During public hearings conducted by the Senate, the Kenya National Commission on Human Rights had pushed for those seeking to become MPs and governors to have at least a degree, and MCAs to have a diploma.

Commission vice-chairman George Morara said setting academic standards will improve the leaders’ performance given that they deal with "complex" matters like auditing financial matters and vetting technocrats.

“We should be hesitant to lower or postpone the issue of qualifications of leadership. The roles of oversight and legislation are technical and require a certain academic threshold,” Mr Morara said.

But, Senators Hassan Omar (Mombasa) and Judith Sijeny (nominated) disagreed, saying many Kenyans with proven leadership skills could be locked out if such qualifications are approved.

Bomet Governor Isaac Ruto said there is a need for "reasonable" qualifications for people to be able to provide oversight and improve services.

The Senate's County Public Accounts and Investments Committee is one of the watchdog committees that has expressed concerns that some MCAs have been cheering governors when the latter are grilled over financial malpractices, rather than providing oversight.

“It is a pity that those tasked with holding the leaders accountable are the ones who have turned out to be their sycophants,” said Kakamega Senator Boni Khalwale, a member of the committee.

Section 43 of the 2011 Elections Act was also amended by inserting a new subsection 5A that seeks to cater for the interests of public servants who could not participate in a by-election under the original Act. One was expected to resign at least six months to vie for a general election.

The amended law now provides for one to resign from public office within seven days of the declaration of a vacancy, in the event of a by-election.

Whenever a vacancy occurs in the National Assembly or the Senate, the respective Speaker shall issue a notice in accordance with Article 101 of the Constitution.


However, the MPs added a new subsection (3A) in Section 16 that says that a vacancy in the office of an MP shall be deemed to occur on the date of the issuing of a notice to the commission, which shall not be later than 21 days from the date of the actual occurrence of the vacancy.

Initially, there was no corresponding provision in the election Act as to when the Speaker can issue the notice, hence the need to introduce it for clarity.

The amendments in section 6 (2) upheld by Parliament also reviewed the period for opening the principal register of voters for inspection from the initial within 60 days from the date of the notice for a general election to 90 days. The records will be available for scrutiny for at least 30 days unlike before when it was for at least 14 days.

“The Commission shall, within ninety 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 thirty days or such period as the Commission may consider necessary,” the new law reads.

Perhaps, to indicate the lawmakers discomfort with the media, Section 24 of the IEBC Act was amended by deleting subsection 3 that required that the commission publishes the annual report in the Gazette and in at least one newspaper of national circulation.

The new section dropped newspaper, to just read, “The commission shall publish and publicize the annual report.”

The amendments introduced a new section 38A that states that for the purposes of providing efficient and effective conduct of elections, the number of voters per polling station shall not exceed 700.

Initially, the limit agreed by the Joint parliamentary select committee on electoral reforms chaired by Mr James Orengo and Mr Kiraitu Murungi was 500 but, the MPs inadvertently did not make the necessary changes, in the new law.

“The president has signed into law a section already existing in the law. So we have two clauses in the newly signed election Act on number of voters per polling station,” Mr Kilonzo Jr pointed out.


Mandera Senator Billow Kerrow commended the move, saying creating additional polling stations has not been easy.

The amended laws also gives the National Assembly powers to review reports on delimitation of constituencies and wards, though that has been the exclusive mandate of the IEBC.

Thanks to a new provision in the law, disputes within parties over nominations will now be settled within 30 days as opposed to earlier, when they used to take longer.

“A political party shall hear and determine all intra party disputes arising from political parties’ nominations within 30 days,” it reads.

This, said Senate Majority Leader Kithure Kindiki, is good for the country as it will help reduce political tension and conflicts ahead of nominations.

With the law now operational, opposition leaders on Wednesday dropped their threat to call for mass action in protest of the legislation and instead to work as a team to wrestle power from Jubilee.

Meeting under the National Super Alliance, Raila Odinga, Kalonzo Musyoka, Moses Wetang’ula and Musalia Mudavadi agreed to approach the August 8 polls as a unified bloc

With a grace period of more than four years, politicians have time to enrol and complete degrees, save for those who will have to start from diploma level, given that the minimum entry grade for a degree programme is a C+.