The clock is ticking towards the 2027 General Election, but a proposed law meant to give IEBC greater authority over election technology remains held up in the National Assembly, more than a year after MPs received it from the Senate.
The Elections (Amendment) Bill, 2024, seeks to address long-standing disputes over ownership of election technology, access to servers and scrutiny of information used in the management of elections.
The Bill was approved by the Senate in December 2024 before being forwarded to the National Assembly. It was introduced in the House in February 2025 and referred to the Justice and Legal Affairs Committee (JLAC), which has yet to present its findings to MPs.
The committee's delay has put the National Assembly under growing scrutiny, particularly because the proposed reforms were drawn from recommendations of the National Dialogue Committee (Nadco) report that Parliament adopted.
Among the key proposals is a requirement that any company contracted by IEBC to provide Kenya Integrated Election Management System (Kiems) technology should transfer ownership of the intellectual property rights connected to the system to the electoral commission.
The change is intended to prevent situations where a technology provider can restrict IEBC's access to critical election systems or servers.
Clause 23 of the Bill proposes changes to Section 44(4) of the Elections Act to give IEBC ownership of intellectual property rights and access to servers containing election information.
"In procuring the technology, the commission shall ensure that, subject to this Act, the Access to Information Act, the Data Protection Act and the right to intellectual property, the technology is accessible and available for scrutiny by candidates, courts and such other persons as required under the law," the Bill states.
The legislation is sponsored by Senate Majority Leader Aaron Cheruiyot of Kericho and Senate Minority Leader Stewart Madzayo of Kilifi.
Another proposal contained in the Bill would introduce Section 82A to the Elections Act. The provision would require IEBC to provide access to information, including details on election technology, without charging applicants when the information is supplied electronically.
For requests involving printed documents, the commission would be allowed to recover the cost of producing and supplying the copies.
"the commission may charge a prescribed fee ... The fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant".
Despite the Senate's approval and the importance attached to the reforms, the JLAC has not tabled a report for the National Assembly to consider.
The committee is headed by Tharaka MP Gitonga Murugara. He did not respond to inquiries seeking to establish when the report would be presented to the House.
Several members of the committee, who spoke on condition that they were not identified, blamed the slow progress on the chairman's absence from committee business.
"our chairperson rarely gets time to attend to committee matters as he is busy on the ground campaigning to become Tharaka-Nithi County Governor in 2027"
The proposed law comes against a history of disagreements between IEBC and election technology providers over access to election information.
The electoral commission has previously restricted political parties, candidates and other interested parties from accessing election information in its custody while working with technology companies.
IEBC has also been accused of permitting unauthorised access to election servers, leading to concerns about the security and possible alteration of election results.
Immediate former National Assembly Speaker Justin Muturi previously called on Parliament to move quickly on the Bill.
He said the proposed law would "grant the IEBC the independence it so requires in the management of election results".
According to Muturi, passing the legislation would also help "avoid situations similar to the ones witnessed in the previous elections"
The issue of server access was particularly contentious during the 2022 presidential election.
Smartmatic International Holding BV, the Venezuelan company that supplied the Kiems kits, refused to give IEBC access to servers carrying election results, even after the Supreme Court issued a ruling on the matter.
The company maintained that opening the servers would interfere with its intellectual property rights.
The dispute later informed the Nadco recommendation for Parliament to change the law "to cure such legal challenges".
The Bill further proposes that IEBC should only engage technology suppliers whose record meets certain standards.
It would require the commission to establish that a supplier of election technology "or their associates have not been found guilty of violating any procurement law, committed a crime, violated professional standards or been barred from participating in public procurement in any jurisdiction".
Smartmatic was responsible for supplying and managing the Kiems kits used in biometric voter registration, electronic voter identification on polling day and the electronic transmission of results from polling stations to tallying centres.
The company supplied more than 14,000 new Kiems kits to IEBC and upgraded the software in another 41,000 existing kits.
Questions surrounding the handling of election data have persisted over the years, particularly concerning the voters' register and presidential election results.
The same concerns arose during the Supreme Court proceedings on the 2017 presidential election petition.
IEBC did not open its servers for scrutiny despite orders from the court. Its lawyer at the time, senior counsel Paul Muite, told the court that the servers were located in France and that the commission needed time to arrange access.
"My lords, the servers are in Europe. We are not refusing to give access. Europe is a couple of hours behind and we have to wait for them to start working," Mr Muite said.
"They have to set up the access window with safeguards."
The dispute over access to the servers formed part of the reasons the Supreme Court overturned the 2017 presidential election outcome and directed that "a fresh fair and credible" election be conducted on October 26, 2017.
The continued delay in dealing with the 2024 Bill now places renewed attention on Parliament as the country moves closer to the 2027 elections, with the proposed reforms still awaiting action in the National Assembly.