Kenya: Supreme Court Outlines Recommendations to Further Enhance Kenya’s Electoral Democracy

Nairobi — The Supreme Court has proposed a raft of measures to further strengthen Kenya’s electoral democracy in its detailed judgement of the 2022 presidential election petition, key among them the need to safeguard poll processes.

In a 133-page judgement relayed on Monday further to a summary delivered on September 5, the Court outline seven key interventions needed to further entrench the independence of the electoral commission including the protection of election technology.

“To avoid suspicion from stakeholders, unless where and when it is absolutely necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C should be restricted to IEBC staff during the election period,” the country’s top court advised.

In addition to securing the integrity of election technology by restricting access to staff of the Independent Electoral and Boundaries Commission (IEBC), the Supreme Court advised the electoral commission to ensure servers supporting elections are distinct from those running day-to-day internal affairs.

The seven-judge bench led by Chief Justice Martha Koome noted that the separation of electoral processes from IEBC’s internal affairs would safeguard the commission from suits that may arise for breaches of third-party agreements which maybe violated during scrutiny of elections.

“IEBC should ensure that the servers supporting the elections and those serving their internal administrative work are distinct and separate. This would then allow the Court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements,” the judges pointed out.

Koome (President), Deputy Chief Justice Philomena Mwilu (Deputy President), Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko also recommended governance reforms to further strengthen IEBC’s institutional framework and create a distinction between policy and administrative functions.

“Parliament should consider enhancing the statutory and regulatory framework on the separate policy and administrative remit of IEBC,” the judgement read in part.

The Court also urged IEBC to institutionalize the separation of functions under the two domains.

“IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy, and oversight responsibility of the Chairperson and the Commissioners; and develop institutionalized guidelines on how to manage the separation of administrative and policy domains,” the Supreme Court advised.

The Court added that a similar distinction must be made on key roles including that of the Chairperson, Commissioners, Chief Executive Officer, other staff and third parties.

The judges also made recommendations touching on statutory forms with the court urging IEBC to make necessary amendments to provide a mechanism to account for stray ballots in polling stations.

“IEBC may consider simplifying and restructuring the Form 34A and include a column that accounts for stray ballots. In addition, it may consider having only one section for total valid votes.”

The judges also emphasized on the need to ensure poll officials are adequately trained on what constitutes valid votes as per the court’s decision.

The Court also urged IEBC to put measures in place to facilitate the realization of special voting as contemplated under Regulation 90 of the Elections (General) Regulations 2012.

Regulation 90 empowers IEBC to provide for voting by election officials, observers, patients admitted in hospital, older members of the society, members of the defence and security forces on duty, prisoners and nomadic pastoralists.

The regulation requires IEBC to formulate measures for “other persons who by reason of any special need, including disability, are unable to access a polling station.”

IEBC has only operationalized special voting in prisons and a section the Diaspora in twelve countries including all EAC Member States, United Arab Emirates, South Africa, United Kingdom, United States, Qatar, Germany and Canada.

Regulation 90 allows IEBC “from time, to time publish notices on the manner and procedure of the conduct of special voting and such notice shall be read as if part of these Regulations.”

Judges of the Supreme Court also called for constitutional reforms to extend the period within which presidential election petitions are to be heard and determined form the current fourteen days.


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