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Why Kibra by-election results were transmitted manually

Friday November 8 2019

Kibra by-election results

A view of results for the Kibra by-election following vote-counting after the casting of ballots on November 7, 2019. PHOTO | CECIL ODONGO | NATION MEDIA GROUP 

ABIUD OCHIENG
By ABIUD OCHIENG
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Nairobi was charged on Thursday as key political parties fought for the Kibra parliamentary seat in a by-election that followed MP Ken Okoth's death in July.

Voting in Kenya is still manual but there have been attempts to make the process electronic, for reasons including reducing fraud and the time spent voting as the public queues for hours.

Results have, however, been transmitted electronically but this was not the case in the mini poll. The reason is anchored in law.

NO OBLIGATION

The results of the by-election were manually transmitted because the Independent Electoral and Boundaries Commission (IEBC) is not obligated to transmit parliamentary results electronically.

The law limits electronic transmission of results to presidential elections and this has not been expressly stated in relation to the other elections such as governor, senator, member of Parliament, woman representative and member of the county assembly.

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On its website, the IEBC stated, "Please note that electronic transmission of election results only applies to presidential elections results”.

Section 39 (1c) of the Elections Act provides that for purposes of presidential elections, the commission shall "electronically transmit and physically deliver the tabulated results of an election for the president from a polling station to the constituency tallying centre and to the national tallying centre".

KIRINYAGA CASE

High Court judge Lucy Gitari applied this section of the law while declining a request by Narc-Kenya party leader Martha Karua to be supplied with electronic transmission data for the Kirinyaga County governor seat.

Ms Karua lodged the request in a petition in which she challenged Anne Waiguru's election in 2017.

“In considering this issue, first and foremost is the fact that electronic transmission of results is only provided for in presidential elections, [as stated in] Section 39 (1c) Elections Act,” justice Gitari said in the October 23, 2017 ruling.

There is no provision for electronic transmission of results from the polling station to the constituency tallying centre in respect of gubernatorial elections. 

The declaration of results for gubernatorial elections is at county level through Form 37C. 

Section 39(1B) Elections Act provides: “The commission shall appoint county returning officers to be responsible for tallying, announcement and declaration in the prescribed forms, or final results from constituencies in the county for purposes of the election of the county governor, senator and county woman representative to the National Assembly.”

NASA'S CASE

In the same year, the National Super Alliance (Nasa) lodged a case against the IEBC, with Jubilee Party and the Attorney-General listed as interested parties.

The petition revolved around the use of technology in the forthcoming general election.

Nasa urged the court to declare that the general election on August 8, 2017 be exclusively electronic in respect to voter registration and transmission of results.

A three judge bench of the High Court, including Justices Kanyi Kimondo, Alfred Mabeya, And Hedwig Ong’udi, held in a July 21, 2017 judgment that, “To our mind what was required of the IEBC was to put in place a mechanism that is set out in Section 44 of the Elections Act. 

"The particulars of the mechanism, whether electronic, manual or any other mode was not expressly provided in Section 44A. If that were the intention of Parliament, nothing would have been easier than to specify.”