The Electoral System in Kenya has been subjected to the greatest rebuke for more than a decade now. In the recent past it has been seen as the greatest source of impunity. In 2007, Kenya’s elections were marred with the worst violence ever in Kenya’s history, this put the Electoral body on the spot light. The post violence election that caused thousands to be displaced (IDPs) and many to loose their lives and property is now a subject at the International Court of Crime (ICC) in The Hague.

It was joy and jubilation as the curtain fell down for the old constitution as we ushered in a new dawn in a constitution that was highly acknowledged by the majority of Kenyans. However, the Electoral System is causing a headache in the political class and cycles.

The Electoral System leadership is now undergoing a high standard of vetting to identify the Independent Electoral and Boundaries Commission commissioners. Some members of the political divide are trying to flex their muscles to see to it that their favorite candidates find themselves in the Electoral System and this is raising eyebrows.

What are the general principles for The Electoral System as prescribed by the constitution?

 The Electoral System shall comply with the following principles;

a)      The Electoral System shall provide freedom of citizens to exercise their political rights under Article 38

b)      The Electoral System shall ensure that no more than two thirds of members of elective public bodies shall be of the same gender;

c)      The Electoral System shall ensure fair representation of persons with disabilities;

d)     The Electoral System shall observe universal suffrage based on the aspiration for fair representation and equality of vote; and

e)      Free and fair elections which are;

(i) By secret ballot;

(ii) Free from violence, intimidation, improper influence or corruption;

(iii) Conduct by an independent body;

(iv)Transparent; and

(v) Administered in impartial, neutral, efficient, accurate and accountable manner.

 Critical challenges facing the Electoral System

The greatest challenge under this Electoral System principle is that of the two thirds rule of either gender. The women are up in arms to ensure that no amendment is done on this section. The Cabinet recommended that some amendments should be done because it was becoming practically impossible to make that principle workable.

The new Electoral System body must build a confidence and trust to all Kenyan voters, that a repeat of 2007 post violence due to election stealing would not occur. This will be possible if proper Electoral Systems and mechanisms are put in place by the Independent electoral body.

In the new Electoral System, in every election, all candidates and all political parties shall comply with the code of conduct prescribed by the independent Electoral and Boundaries Commission (Article 84). The major task will be to ensure that this code of conduct is enforceable.

In the new Electoral System what does the law provide on voting?

Article 86 of the Constitution of Kenya provides that at every election, the Independent Electoral and Boundaries Commission shall ensure that;

a)      whatever voting method is used, the Electoral System is simple, accurate, verifiable, secure, accountable and transparent;

b)      the votes cast are counted, tabulated and the results announced promptly by the prescribing officer at each polling station;

c)      the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and

d)     appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

The new law on The Electoral System provides for establishment of IEBC (Article 88)

It states that; There is established the Independent Electoral and Boundaries Commission. The Electoral System further gives guidelines on the eligibility for appointment as a member of the commission. That a person is not eligible if;

a)    the person has, at any time within the preceding five years, held office or stood elections as-

i)     a member of Parliament or of a county assembly; or

ii)    a member of the governing body of a political party; or

b)    holds any State office.

A member of the Commission shall not hold any other public office. The Commission will be responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in Particular, for-

a)      the continuous registration of citizens as voters;

b)      the regular revision of the voters’ roll;

c)      the delimitation of constituencies and wards;

d)     the regulation of the process by which parties nominate candidates for elections;

e)      the settlement of electoral disputes, including disputes relating to or arising from nominations but election petitions and disputes subsequent to the declaration of election results;

f)       the registration of candidates for election;

g)      voters education;

h)      the facilitation of the observation, monitoring and evaluation of elections;

i)        the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;

j)        the development of a code of conduct for candidates and parties contesting elections; and;

k)      the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.

 The Electoral System and Electoral disputes (Article 87)

The new Electoral System provides for the formation of laws through Parliament which shall enact legislation to establish mechanisms for timely settling of disputes.

Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

The Electoral System allows room for service of a petition which may be direct or by advertisement in a newspaper with national circulation.