Kenya 2022: Why Kenyans must wait before results are announced

In depth
This article is part of the dossier: Kenya 2022: Who will win the great race?

By Son Gatitu

Posted on Tuesday, 9 August 2022 11:48, updated on Saturday, 13 August 2022 11:34
An employee of the Independent Electoral and Boundaries Commission arranges ballot boxes and election material at a tallying centre in Eldoret
An employee of the Independent Electoral and Boundaries Commission (IEBC) arranges ballot boxes and election material at a tallying centre in Eldoret, Kenya, August 8, 2022. REUTERS/Baz Ratner

22.1 million Kenyan voters are expected to head to their voting stations to choose who their leaders for the next five years will be. However, Kenyans will have to wait nearly a week to find out who will be the winner of this highly anticipated election due to the strict legal regime of the tallying process. We break down the process and voting technicalities.

The law allows the Independent Electoral and Boundaries Commission (IEBC) up to seven days from the date of elections to tally the presidential elections results, announce and declare the outcome. This means the latest the commission can do so will be 15 August, “but I think by 13 August we should have something before the seven days elapse”, says Irene Masit, an IEBC Commissioner.

The 22 million voters are distributed across 46,229 polling stations spread across Kenya and some 12 foreign countries. Each polling station is required to have a maximum of 700 voters. This was a decision made in 2016 and legislated in the run-up to the 2017 general election. The aim was to ensure that election officials would have their task reduced to manageable levels as some of the stations were previously overpopulated.

The management of results is very critical [at all the levels] for the observers

Kenyan inmates will be voting for the second time, but only in the presidential election. 7,413 prisoners are registered to vote in 121 prison facilities across the country.

For one to be allowed to vote, he/she must present an original identification card or a valid Kenyan passport, depending on which document was used to register as a voter.

If documentation is in order, a voter will then be biometrically identified using an electronic device known as the Kenya Integrated Election Management System (KIEMS) kit.

A voter’s fingerprints will be checked in the kit, and if found, the person will be cleared to vote and then presented with six ballot papers. As this happens, the name of the voter will also be crossed in a printed (manual) register.

The six elective positions

Kenyans are voting for six elective positions at the national and local levels – president, governor, senator, Member of Parliament (MP), county woman member of national assembly (also known as Woman Rep), and Member of County Assembly (MCA).

Voters will be electing a new parliament comprising 290 constituency representatives, 47 female MPs, 47 senators and 47 governors.

Each county is divided into wards where MCAs represent voters at the local legislative house. There are 1,450 wards across the country.

In this year’s elections there are a total of 16,100 candidates for all the positions, but only 1,881 can be chosen.

Path to results

Voting should run between 6am and 5pm local time. Once every voter in the queue has voted, election officials are required to close the voting exercise and begin counting votes for each seat.

The law requires officials to begin with the seat of president, followed by MP, MCA, County Governor, County Senator, and finally, county female MP.

This is how the presidential election results process is managed using four key forms:

  • Form 34A is filled by the presiding officer (PO) at the polling station, meaning there will be 46,229 such forms.
  • The Presiding Officer (PO) is required to enter results for each of the presidential candidates in the form, based on the count that must be witnessed by all agents of candidates and political parties present.
  • The PO then takes a photo of the form using the KIEMS kit and transmits it electronically to the national tallying centre where it is received by the IEBC chairperson who serves as the returning officer of the presidential election.
  • The same form is transmitted to the constituency returning officer.
  • The PO then distributes copies of form 34A to the agents, but keeps a copy to accompany the ballot materials before resealing the presidential ballot paper with all its contents.
  • The original copy of the form is then delivered to the constituency returning officer at the prerequisite tallying centre at the conclusion of all processes at a polling station.

The PO is required to continue with the counting process for the other five elective positions, counting one box at a time and announcing the total count for each candidate. These results do not require electronic transmission, meaning the PO will only deliver the physical forms to the constituency returning officer.

Presidential tallying

At the constituency level, all the 290 constituency returning officers (RO) are required to receive all forms 34A from all polling stations within their area. The number varies based on the number of voters and therefore the number of polling stations.

The RO then creates a summary of all results from their polling stations and prints out a form 34B to be submitted at the national level. The officer is required to electronically transmit the form 34B to the presidential election returning officer at the national tallying centre.

Some candidates will know their results before we announce [them] officially

The constituency returning officer then receives all results forms for the other five elective positions from the polling station. The officers are responsible for the tallying, announcement and declaration of the constituency MP and MCA elections.

For the countywide elections of governor, senator and female MP, the constituency RO generates the totals for their constituency and delivers physical results forms to the county returning officer. It is the county returning officer who tallies, verifies, announces and declares a winner for the countywide elections.

The long wait….

Given that the constituency RO is required to travel to Nairobi to deliver the presidential election forms (34As and 34Bs), he or she must delegate to the deputy constituency returning officer the duty of delivering the other results at the county level.

At the national tallying centre situated at the Bomas of Kenya in Nairobi, the election day will largely be activity free, given that voting will be taking place at polling stations across the country. The IEBC commissioners are expected to visit some of the regions to observe the election process and host media briefings from time to time.

After 5pm however, officials at the Bomas of Kenya will be preparing to receive the presidential election results forms sent electronically from the polling stations. They will be expected to download the forms and copy down the results data into a tabulation platform.

“There will be [an API] link to access results and anyone can use them to do any parallel tallying,” says Irene Masit, an IEBC Commissioner. “Some candidates will know their results before we announce [them] officially.”

Media houses, presidential campaign teams and election observation teams like ELOG have lined up to conduct parallel vote tabulation.

In June 2022, IEBC chair Wafula Chebukati called on election stakeholders to tally results they access from polling stations or from the public portal provided and compare the same with the commission’s tally.

“[Party/candidate] agents should take the results declaration forms [at polling stations],” Chebukati said. “ You can do […] simple math[s]. When you come to Bomas come with your results so that we [can] compare notes here. Your agents will have all [the] results.

With high political suspicion in the country, it’s a matter of wait-and-see on how candidates or their parties will use data from the parallel tallies.

The law only recognises results as declared by IEBC. The fear, however, is should the IEBC be delayed, politicians may publish their data – whether factual or manipulated – and use it as grounds to reject an outcome should the election not go their way.

“They are only allowed to do their calculations but not announce. Only [the]  IEBC can do that as mandated by the law,” says Commissioner Masit.

Connectivity of KIEMS

All KIEMS kits deployed to the polling stations have two network sim cards necessary for Internet connectivity. However, according to the IEBC, 1,290 polling stations have no 3G or 4G network coverage necessary for transmission of forms.

As such, the IEBC procured just over 1,000 satellite modems to provide wireless networks for affected areas. Stations that do not have access to any network will be required to transmit the forms from constituency tallying centres.

The Bomas of Kenya will be processing all the e-forms as they wait for the physical forms to be delivered from across the country. Even though the 290 constituency ROs will have done the summary totals for each of their regions, Chebukati cannot announce such results at the Bomas of Kenya, until he verifies the totals in forms 34B against the corresponding forms 34A.

“The chairman cannot announce results unless and until he receives a physical form to compare with the image and what was announced at the polling station,” says Irene Masit, an IEBC commissioner.

“The management of results is very critical [at all the levels] for the observers,” says Marcus Ageng’a, an election observer at ELOG. “My only concern was when IEBC conducted [a] simulation of [the] results transmission process, areas that had no 3G/4G connectivity were not simulated for confidence building.”

Masit however says tests have been done and discussions held with Internet connectivity service providers to ensure all polling stations will be able to transmit the forms.

“Last week, we met with all service providers, that is, Telkom, Safaricom, Airtel and the company providing satellite modems and all issues have been resolved,” Masit says.

Given the enormous assignment of the constituency returning officers, it may mean the earliest they can start their journey to the Bomas of Kenya will be in the afternoon hours of Wednesday 10 August.

Their efficiency will depend on how fast they can cover the short or long journeys with plans to airlift some of the returning officers should there be difficulty to reach Nairobi in good time.

Nerves set in…

“Historically, jitters begin to arise when results begin to trickle,” Bobby Mkangi, a constitutional lawyer says. “It will be important for Kenyans to remember we need to give [the] IEBC all the support it needs and to be patient… It is expected [that the] IEBC will be very keen to ensure errors are minimised.”

If we find any discrepancy, there is an error form […] where we will enter those errors, but we cannot change anything in form 34A and 34B, it will be subjected to the [Supreme] Court

The law does not allow any election official at the IEBC, including the chairperson, to alter any results even if errors are noted. “If we find any discrepancy, there is an error form – an administrative form – where we will enter those errors, but we cannot change anything in form 34A and 34B, it will be subjected to the [Supreme] Court.”

For a presidential candidate to be declared winner in this election, they must garner more than 50% of all valid votes and also secure at least 25% of votes cast in at least 24 counties. All other elective positions require a simple majority for the winner to be declared.

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