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Introduction
Kenya will celebrate sixty years of independence on December 12th, not more than two weeks from now. During this time, the country has seen almost everything. Kenya’s path to democracy has been marked by a number of significant events and reforms, including the recent Gen Z protest in June. Despite challenges, the country has made strides towards establishing a more democratic political system. Kenya, for example, was a one-party state until 1992. The ushering of multi-party democracy was a welcome relief to many Kenyans. One constant factor in Kenya’s democracy has always hinged on the integrity of its electoral processes. For far too long, trust in the electoral process has remained elusive. Trust in elections ensures political stability and the peaceful transfer of power, but that trust is built on transparency. In recent years, the Independent Electoral and Boundaries Commission (IEBC) has relied on live-streaming presidential election results to provide public access to the tallying process in real time. This approach has bolstered confidence in election outcomes by enabling Kenyans to follow the results from polling stations to the national tallying center. However, the proposed Elections (Amendment) Bill 2024 seeks to repeal the live-streaming requirement, raising important questions about the implications for transparency, public trust, and the evolution of electoral practices in Kenya.
The Elections (Amendment) Bill 2024, currently before the Senate, proposes significant changes to how presidential election results are communicated in Kenya. The bill seeks to eliminate the legal requirement for the Independent Electoral and Boundaries Commission (IEBC) to live-stream results as they are announced at polling stations. Instead, it emphasizes electronic transmission of results to tallying centers, candidates, agents, and observers. This change, while seemingly technical, could fundamentally undermine the transparency and accountability of Kenya's electoral process. Under the current law, live-streaming results from polling stations allows Kenyans to monitor the electoral process in real-time. It provides a layer of transparency that assures citizens that the results announced at the source match what is later tallied at the constituency and national levels. Removing this requirement means that voters would have to rely solely on digital images of forms uploaded to the IEBC portal to gauge election outcomes. This shift raises serious concerns about the credibility of the process, public confidence, and adherence to constitutional principles.
Transparency builds trust. Why destroy it?
I believe that trust, like the delicate thread weaving through the fabric of democracy, is the very essence that keeps an electoral process honest. Trust is an unspoken agreement between citizens and their governing institutions, based on the belief that their voices are heard and that their choices are respected. In the realm of elections, trust is more than just a desirable trait; it is the foundation upon which the entire democratic structure is built. Article 81(e) requires that elections be free, fair, and transparent, ensuring openness throughout the voting, counting, and tallying stages. Article 10 further establishes transparency and accountability as core national values, while Article 35 guarantees the public’s right to access information. These provisions emphasize that elections must not only be fair but must also appear to be fair, accessible, and verifiable by all. Live-streaming results at polling stations align perfectly with these principles. It provides an avenue for Kenyans to independently observe the electoral process, ensuring that the results announced are consistent from the ground up. Removing this requirement would diminish public oversight and weaken a critical layer of accountability. Statutory provisions in the Elections Act reinforce these constitutional principles. The current Section 39 requires the IEBC to live-stream results to promote public access and transparency. This provision was introduced after past elections highlighted the risks of opaque tallying processes. Live-streaming ensures that voters, observers, and other stakeholders can independently verify results, fostering confidence in the electoral process.
The Risks of Removing Live-Streaming of results
In his article, “Why elections are bad for democracy,” David Van Reybrouck cited a 2013 World Values Survey found that over the last decade, there has been a significant increase in calls for a strong leader, “who does not have to bother with parliament," and that trust in governments and political parties has reached a historical low. People appear to like the concept of democracy but despise its implementation. Except for the 2002 electoral body, no one has ever received near-unanimous applause for a job well done at the helm of an electoral body since we ushered in multi-party elections in Kenya. In fact, it wasn't until 2002 that a presidential election runner-up gracefully conceded the race. In simple terms, of the six times the country has held general elections, only once has a runner-up gracefully conceded: the 2002 elections. What happened to the other twenty-five years? Who is to blame? You know the answer: Parliament and the electoral body.
The proposed amendment to remove live-streaming opens the door to several risks that could undermine Kenya’s electoral integrity. Without real-time public access to results, the tallying process becomes less transparent. It shifts the burden of oversight from the public to select stakeholders, such as agents and observers, limiting the broader scrutiny that live-streaming provides. Moreover, the proposed changes fail to address discrepancies between electronically transmitted and physically delivered results. Past elections have shown that inconsistencies between polling station results (Forms 34A) and constituency tallies (Forms 34B) can trigger disputes. By omitting safeguards to resolve such discrepancies, the proposed law increases the potential for contested outcomes and public mistrust.
The courts have also underscored the importance of transparency in election management. In the 2017 case of Maina Kiai & Others v. IEBC & Another, the Supreme Court emphasized that results announced at polling stations are final and must be accessible to the public. Any discrepancies between announced and transmitted results, the Court warned, could undermine trust in the electoral process and lead to disputes. This judicial perspective highlights the risks associated with the proposed amendment, which removes critical mechanisms for public oversight. In the Raila Odinga 1 case in 2017, the Supreme Court annulled the presidential election due to irregularities in the transmission and verification of results. The Court emphasized that transparency and verifiability are critical to credible elections. It ruled that elections are not just about numbers but also about adherence to constitutional principles of openness and accountability. Responding to the judgement, Parliament, in conjunction with IEBC, introduced several reforms to enhance transparency, including the live-streaming requirement. By rolling back these reforms, the proposed bill risks repeating the mistakes of the past. It ignores the Supreme Court’s directive that the electoral process must be not only fair but also seen to be fair by all Kenyans.
Time to Rethink
The Kenyan Constitution of 2010 breathed new life into the country’s electoral laws. In fact, IEBC is improving and becoming more professional. This has contributed to an increase in demand for transparency in election preparation and management. The use of technology is also assisting the IEBC in addressing other concerns and building societal trust in electoral processes. This is a perfect demonstration that transparency in elections is not a luxury—it is a necessity. It serves to ensure that citizens have faith in the process and accept the outcomes. In fact, part of the reason why violence that accompany every election cycle was minimal in 2022 polls was because of the streaming of the presidential results from Bomas. Live-streaming provides an unfiltered view of the election as it unfolds, allowing Kenyans to see that the results announced at polling stations align with the final tallies. This visual evidence is particularly important in a polarized political environment, where trust in institutions is often low.
Way Forward and Conclusion
We must, as a country, prioritize transparency in its electoral processes. The Senate should reject the proposed amendments and retain the livestreaming requirement in the Elections Act. This mechanism has been instrumental in building public trust and minimizing disputes. Instead of weakening transparency, lawmakers should strengthen oversight mechanisms, ensuring that both electronic and physical results are consistent and verifiable. The IEBC should also enhance its technological infrastructure to address concerns about electronic transmission. For instance, real-time updates on polling station results can complement live-streaming, providing multiple layers of accountability. Additionally, any delays or discrepancies in result transmission should be promptly addressed, with clear guidelines to ensure public confidence. Lawmakers must prioritize transparency, accountability, and public confidence, rejecting any amendments that weaken these pillars. In a democracy, the will of the people is paramount, and the electoral process must reflect this truth at every stage.
