By Fredrick Obwanda
Every five years, Kenyans go to the polls to choose their new leaders as stipulated in Article 136 of the Kenyan Constitution 2010. Specifically, on the second Tuesday in August every fifth year, registered voters participate in national elections to elect a president, member of national assembly, senator, women representative, governor and member of county assembly.
However, when does the election process start and end? Most citizens are unclear on this question. Many focus on the voting day activities and outcomes, positioning the elections as a one-day affair. Nevertheless, this is not the case.
Elections in Kenya seem to be a continuous process that begins immediately another is completed culminating in what is termed an election cycle. This entails a series of electoral activities that happen in a systemic manner over the five-year period between one general election and another. They are subdivided into three phases – pre-election, actual election, and post-election.
Each phase has specific activities as guided by the Independent Elections and Boundaries Commission (IEBC), the main electoral institution that draws its existence and functions from Article 88 of the Constitution of Kenya 2010. Let us explore these phases beginning with the post election.
This is the period immediately after the conclusion of a general election, a winner determined and sworn into office. The Commission plans and sets in motion specific activities that will give strategic direction for the next five years of the election cycle. Key activities include commissioning a post-election evaluation report together with all the stakeholders.
This report covers several areas, including an in-depth evaluation of how the current existing laws affected the electioneering preparations.
For instance, just before the August 2022 elections, members of the National Assembly pushed several amendments to the Elections Act of 2011 and the Political Parties Act of 2011. However, it is good practice for lawmakers to debate and pass laws that affect the planning process one calendar year prior to allow budget deliberations to factor in any adjustments in addition to the expected operation plans. The evaluation will highlight the impact of such amendments on the electoral process.
The second part of the scrutiny is results management. The focus here will be on how IEBC managed results transmission through the laid down technological procedures and laws, this is a total review of the operationalisation of the Elections (Technology) Regulations of 2017.
The other areas include reviewing whether votes were counted at the polling stations and all forms filled by staffers in the presence of all stakeholders – party, candidate agents, and observers. Also whether all the forms were filled in accordance with The Elections General Regulations of 2012. The examination explores whether the process met the set standards, the challenges experienced, and the necessary correctional measures.
The Kenyan election is a multi-agency exercise that includes other governmental institutions like the Judiciary, Office of the Registrar of Political Parties, and the ministry of Information Communication and Technology (ICT). Each of these agencies reports what worked and what did not work for them during the last elections and issues recommendations that are debated together with expert resource persons and thereafter adopted within the report.
Besides a review of the operations, IEBC also requests other partners to present their independent awareness reports gauging the effectiveness of their efforts in complementing the Commission’s delegated mandate. The Commission also reviews the electoral security and warehousing systems, and lastly whether its resource mobilization strategy was optimized and targets met.
The post-election review can take about one to two years to complete, thereafter the Commission tables a report, which will form an election operations plan (EOP) covering the next five years. It is at this stage of the cycle where stakeholders work towards reshaping the landscape of the next elections, unfortunately, it attracts less glamour and participation, especially from the political class yet it is the most important phase as recommendations form part of the institutionalization of the election process, and thus have budgetary and policy implications going forward.
The post election activities seem to usher the pre- elections almost seamlessly.
The pre-election phase officially begins three years to the general election. During this period, IEBC’s mandate and activities are more pronounced especially in the last year.
The first activity is linked to the post-election evaluation report covered during the post election phase above. The Commission tables its legal recommendations to the joint justice and legal affairs parliamentary committee for discussion and appropriate amendments. This allows for the tabling of the general election budget, which is separate from the Commission’s annual budgetary allocation that is factored into the national budget.
The annual budget caters for the continuous running of activities at the Commission’s secretariat, voter education, information, and public outreach, whereas the general election budget is specific to the elections. After approval of election budget, the Commission procures, tests, and commissions various election materials and service providers. They also hire, train, and deploy extra personnel due to increased workload.
Alongside these increased activities are those that amplify voter registration, verification, publication of a new voter register, and accreditation of voter educators and election observers. The Commission partners with multi stakeholders to conduct voter education and registration as guided by The Election (Registration of Voters) Regulations of 2012.
The mostly donor supported stakeholders steer the education and awareness function while the Commission does the registration. This has been mainly due to budgetary constraints. The ideal process would be to factor the voter education and awareness budgetary allocation within the larger IEBC proposed yearly budget plans appropriated in the national assembly, but for unknown reasons, this item never makes it for a five-year cycle.
Probably this explains why most voters interact with the Commission, either on voting day or a few months during the rushed mass voter registrations conducted in the voting year.
Three months or ninety days, before the election day, the commission through an advertisement spells out the start and end of campaigns. It also receives all political party lists and candidates, including independents right after primaries as stipulated in The Elections Party Primaries and Party (Lists) Regulations. This is the most familiar stage in the electoral process as all campaigns are in high gear until election day.
During this time, another key stakeholder group that is activated is the independent electoral observers, who provide critical non-biased oversight on the Commission and the larger public. Their presence and participation also adds credibility to the electoral process.
The pre- election phase ends on election day.
In this phase, the primary activity is voting. Polls open at 6 am in the polling stations countrywide. In the just concluded elections in August 2022, there were 46,232 polling stations. All factors constant, the polls close by 6 pm and vote counting begins.
Under normal circumstances, results are transmitted to the national tallying centre in the case of presidential elections upon completion of tallying. Gubernatorial, constituency and ward results are announced at the county tally centers where they are finalized and the physical forms later transported to the national tallying centre for verification.
As prescribed in law, the Commission’s chairperson announces the presidential results and issues a certificate to the winner and the running mate respectively in broad daylight in the presence of local and international observers, party agents, and media. It then gazettes the results and alerts the Chief Justice at the same time.
In cases of disputes or dissatisfaction with the presidential results, the Kenya laws (Constitution of Kenya 2010) give room for parties to submit electoral petitions at the highest court in the land, which will be determined seven days from the day of submission by the respective parties. Meanwhile, governors, senators, and members of national and county assemblies are by law required to petition their dissatisfaction at the High Court.
The regulations that guide the process include The Supreme Court Act of 2012, Supreme Court Rules of 2012, Rules of Procedure on Settlement of Disputes Regulation, 2017, and The Appellate Jurisdiction Act No. 9.
Upon the deliberations at the court, and the election results are nullified, the Commission has to comply with Article 138 of the Constitution and set aside an additional sixty days for a presidential re-run. If the courts determine that elections were free, fair, transparent and meets the threshold as set out in Article 38 and 81, then the presidential elections processes come to a close, ready for the swearing-in, of course, guided by the Assumption of Office Act of 2012 signifying an end to the electioneering period.
The conclusion of the elections ushers us into the next phase of the cyclic electioneering process, the post election.
Fredrick Obwanda is Programme Director at Uwazi Consortium