The contentious bill sponsored by the Jubilee Party seeks to reduce the powers of the electoral commission chairman and entrench the manual system of transmitting results.
The proposed law, which is being considered by the National Assembly, seeks to make it possible for the vice chairman of the IEBC to act as the chairman in the absence of the substantive chairman.
If both the chairman and the vice chairman are absent, the rest of the members of the commission would elect one of them as the chairman.
The change would also make it possible for at least three commissioners to make a decision as the commission by lowering the quorum for its meetings from five to half of the existing members but not less than three.
On results transmission, it says although both electronic and manual systems will be used, the manual one takes precedence in case of conflict.
It also seeks to provide for President Uhuru Kenyatta to be declared the winner in the October 26 repeat elections if Nasa flagbearer Raila Odinga makes good his threat not to take part in the repeat poll — if only he informs the IEBC in writing.
The proposed law, still, makes provisions for instances where the chairman of the commission that manages the elections is absent and details how decisions of the commission are endorsed.
Presiding officers and returning officers who fail to fill in the result forms properly would be in trouble if the law is enacted as they would be thrown in jail for five years without the option of a fine.
While the provisions on the concurrent transmissions could be taken to be aligning the current law with the decisions of the Supreme Court and the Court of Appeal, those on the commission’s chairman could prove more divisive as they appear to be watering down his powers.
The bill provoked fierce debate Thursday, with Rarieda MP Otiende Amollo, one of the Opposition’s lawyers in the successful petition, arguing that the proposed law is unconstitutional.
There have also been arguments that the proper thing for the commission to do at the next elections is to manage the election properly by having its officers do their job correctly and having all the results before declaring the final.
The proposed law has 11 clauses and runs into 15 pages and has been sponsored by Baringo North MP William Cheptumo, who was named the chairman of the ad hoc committee to scrutinise it and take views from the public.
Splits at the commission in the wake of the Supreme Court decision and the pressure that followed exposed the differences at the IEBC, with four of the commissioners disowning a memo by the chairman, Mr Wafula Chebukati.
The bill provides for voting on contentious matters, stating: “Unless a unanimous decision is reached, a decision on any matter before the commission shall be by a majority of the members present and voting.”
The proposed law also provides for the commission to transmit the results of a presidential election manually and electronically from a polling station to the constituency tallying centre and the national tallying centre.
The commission would then tally and verify the results received at the constituency tallying centre and the national tallying centre and publish the results on an online public portal.
It then entrenches into law the assertion by the commission regarding differences between the electronically transmitted results and that filled on the forms, saying: “Where there is a discrepancy between the electronically transmitted and manually transmitted results, the manually transmitted results shall prevail.”
It also seeks to insulate the results in case of a failure to transmit the results electronically, stating: “Any failure to transmit or publish the election results in an electronic format shall not invalidate the result as announced and declared by the respective presiding and returning officers at the polling station and constituency tallying centre, respectively.”
This appears designed to take care of instances where polling stations lack coverage, such as the more than 11,000 in the last election.
The Supreme Court criticised the IEBC’s failure to have the results transported physically in these areas. It was also critical of the failure by the IEBC to have a complementary system for transmission where the electronic one failed.