Electoral officials could face a fine of Sh2 million, up to five years in prison, or both under proposed legal changes seeking to prevent elections from being conducted at polling stations that have not been officially gazetted.
The penalties are contained in the Election Offences (Amendment) Bill 2024, which is due for consideration at the committee stage in the National Assembly this week.
The proposed legislation seeks to close a gap in the existing law by expressly making it an offence to conduct an election at a polling station that has not been formally listed by the Independent Electoral and Boundaries Commission (IEBC).
Under the proposed changes, election results declared by IEBC officials must originate from polling stations that have been gazetted. The current Election Offences Act does not specifically classify the use of an unlisted polling station as an election offence.
The Bill seeks to strengthen accountability in the management of polling stations by ensuring that electoral activities take place only at locations officially recognised by the commission.
Regulation 7 (1) (c) of the Elections (General) Regulations of 2022 requires the IEBC to publish and publicise a Gazette notice identifying polling stations established in every constituency. The notice must be made available through electronic and print media with national circulation, as well as other easily accessible media.
Each polling station must also be identified using a distinguishing number, letter or combination of both, allowing voters and election officials to establish the officially designated locations.
Beyond the proposed punishment for using unauthorised polling stations, the legislation seeks to hold election officials accountable for failing to announce results or taking an unreasonable amount of time to do so.
"A member of the commission, staff or any other person having any duty to perform pursuant to any written law relating to any election who, where required to declare the result of an election, fails or unreasonably delays to declare the results of an election, commits an offence," the proposed new section reads.
The provision would criminalise unreasonable delays in declaring election results where the law requires an official or another responsible person to make the announcement.
The Bill is sponsored by Senate Majority Leader Aaron Cheruiyot of Kericho and Senate Minority Leader Stewart Madzayo of Kilifi. It originated from the National Dialogue Committee (Nadco), whose report was adopted by Parliament in February 2024.
The Senate approved the proposed legislation on November 19, 2024, before sending it to the National Assembly. It was read for the first time in the lower House on December 3, 2024, and later examined by the House Committee on Justice and Legal Affairs.
The proposed reforms are part of a broader effort to strengthen electoral laws following the political tensions that followed the 2022 General Election.
Nadco was established as a bipartisan initiative after deadly protests erupted following Azimio la Umoja One Kenya leader Raila Odinga's rejection of the outcome of the August 9, 2022 presidential election.
The talks were co-chaired by Wiper leader Kalonzo Musyoka, representing Azimio, and Kikuyu MP Kimani Ichung'wah, representing Kenya Kwanza. The discussions covered changes to election laws, among other issues, with the aim of creating a fairer environment for candidates competing in elections.
The proposed restrictions also draw attention to disputed polling station arrangements and the handling of results during the 2017 presidential election.
For that election, the IEBC gazetted 40,883 polling stations. However, a successful petition challenging the presidential election outcome alleged that the commission had "illegally and fraudulently established ungazetted polling stations in Mandera County, which were manned by ungazetted and undesignated returning and presiding officers".
The petition challenging President Uhuru Kenyatta's victory also raised questions about how results were transmitted from polling stations and incorporated into the final presidential tally.
According to the petition, results from slightly more than 11,000 polling stations were transmitted from locations other than those officially gazetted. It further claimed that vote-count results were added to the final tally, which the petitioner argued compromised the integrity of the election.
The proposed legislation also seeks to address the deliberate manipulation of results after they have been declared.
It proposes introducing Section 6(0) under the Election Offences Act to make it an offence for a commission member or staff member who "knowingly or intentionally interferes, alters or knowingly or intentionally causes another person to interfere or alter declared results".
The provision would target electoral officials who deliberately tamper with declared results or knowingly cause another person to interfere with them.
Taken together, the proposed amendments would establish specific offences relating to the use of polling stations that have not been gazetted, unreasonable delays in declaring election results and intentional interference with declared outcomes.
The National Assembly's consideration of the Bill marks another stage in the proposed reforms arising from the bipartisan dialogue process, with the measures seeking to reinforce compliance with electoral rules and protect the credibility of election results.