The Elections ( Amendment ) ( No.2 ) Bill, 2024

Background

The Elections (Amendment) (No. 2) Bill, 2024 seeks to amend the Elections Act, 2011 (No. 24 of 2011) to revise candidate registration terminology, enhance transparency in electoral technology procurement, establish clear timelines for information access, and restructure the process for declaring and transmitting election results.

Key Amendments

• Terminology Standardisation: Throughout the Act (including Sections 14, 16, 17, 19, 22, 23, 24, 25, 32, and 33), the term "nomination" is replaced with "registration" or "registration of candidates". "Nomination" is redefined specifically as the process through which a political party selects its candidates.
• Inspection and Revision of Register: Section 6 is amended to keep the Register of Voters open for public inspection at all times. Revisions to voter particulars are barred within 60 days before a general election (or Article 138(5) presidential election), between vacancy declaration and a by-election, and between referendum publication and the referendum date.
• Recall Grounds: Section 45 is modified to specify that a member may be recalled on grounds of misconduct likely to bring hatred, ridicule, contempt, or disrepute to the office, or persistent desertion of the electorate without reasonable cause.
• Polling Station Capacities: Section 38A is amended to change the voter capacity of polling stations from "not exceed seven hundred" to "between fifty and one thousand" voters.
• Finality of Appeals: Sections 75 and 85A are amended to make the High Court's and Court of Appeal's determinations on election appeals final, deleting the restrictive phrase "on matters of law only".

New Obligations

• Electoral Technology Procurement (Section 44): The Commission must ensure that all procured election technology intellectual property vests in the Commission. Processing of election data must occur on servers or data centres physically located within Kenya. Suppliers must not have violated procurement law, committed crimes, or been barred in any jurisdiction.
• Electoral Results Declaration and Transmission (Section 39):
  • Constituency returning officers must tally, announce, and declare results for constituency elections and collate/submit presidential, gubernatorial, senate, and county women representative results.
  • For presidential elections, the Commission must electronically transmit results from polling stations to constituency and national tallying centres within two hours of declaring the results at the polling station.
  • The Commission must publish polling results forms on an online public portal and declare the final presidential results in the order in which tallying is completed.
• Access to Information (Section 82A): The Commission is obligated to provide access to election information, including technology. If requested for court-ordered scrutiny of votes, access must be provided within 3 days for presidential elections and 7 days for other elective positions. Soft copies must be provided free of charge, while hard copies may only be charged at actual production cost.
• Electoral Process Evaluation (Section 87A & 87B): Within one year of a general election, the Commission must facilitate an evaluation of the electoral process. This review must include audits of the voter register, electoral technology, media/civil society roles, voting and counting procedures, human resources, dispute resolution mechanisms, and financial costs. A report must be published in the Gazette and submitted to Parliament.