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The Ballot and the Nation �Understanding Kenya’s Electoral Process�

BRIAN SENGELI, POLICY & GOVERNANCE

20^TH OCTOBER 2025

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Why This Conversation Matters

Elections define legitimacy in a democracy.

Kenya’s political stability is directly tied to credible elections.

Low voter registration and mistrust of IEBC threaten democratic gains.

Informed citizens are the first defence against electoral manipulation.

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Evolution of Kenya’s Electoral System�

History

1988: Mlolongo (queue voting) under one-party rule — voters lined behind candidates; secrecy and fairness compromised.
1992–2002: Return to multi-party elections after Section 2A repeal; opposition emerges but state control remains strong.
2010 Constitution: Anchors independent IEBC, transparent electoral framework, and rights-based participation.
2013–2022: Adoption of technology (biometric registration, electronic transmission); persistent issues with credibility and party primaries.

Today: Focus on inclusion, transparency, and ethical political competition under the Elections Act and IEBC oversight.

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Constitutional Foundations of Elections

Article 1(2): Sovereign power belongs to the people and is exercised through elected representatives.

Article 38: Guarantees every citizen the right to free, fair, and regular elections.

Articles 81–86: Outline the principles, conduct, and management of elections.

Elections are not events; they are constitutional processes.

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The Role and Mandate of IEBC (Article 88)

Article 88(4): IEBC is responsible for conducting and supervising referenda and elections to any elective body.

Core functions:

Continuous voter registration.

Regulation of political party nominations.

Settlement of electoral disputes (excluding petitions).

Voter education and election monitoring.

IEBC must be independent and impartial.

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Voter Registration – Your Right and Responsibility�

Article 83(3): Administrative arrangements must ensure every eligible citizen can register and vote.

Continuous voter registration: not seasonal, though often implemented in phases.

Verification of details is as important as registration.

Voter apathy leads to unrepresentative outcomes.

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Political Parties and Nominations

Articles 91–92, Constitution (2010): Political parties are vital instruments of democracy.

Must promote national unity, human rights, and gender equity.
Required to maintain internal democracy and transparent finances.

IEBC verifies party lists and nominations under Article 90 (proportional representation).

Regulation & Oversight

ORPP registers and supervises parties (Political Parties Act, 2011).
Political Parties Fund supports qualifying parties that meet legal thresholds.
Persistent challenges: unfair nominations, weak inclusion, limited funding access.

Key Case:

Moses Mwicigi & 14 Others v. IEBC & 5 Others [2016] eKLR – affirmed that party lists are final upon IEBC submission and internal democracy is constitutional.

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Campaign Ethics and Financing

Governed by the Elections Act, 2011 and the Election Campaign Financing Act, 2013 (ECFA).
IEBC is mandated under Article 88(4)(i) of the Constitution to regulate campaign spending limits and ensure transparency in campaign financing.
Article 91(1)(f): Political parties must promote ethical political behaviour and uphold national values under Article 10.
The ECFA provides for spending caps, disclosure of contributions, and reporting by candidates and parties.
However, full implementation has been deferred by IEBC since 2017 through Gazette Notices, citing lack of regulations.
Judicial Note: In Okiya Omtatah Okoiti v. IEBC & Others [2017] eKLR, the High Court upheld IEBC’s postponement of the Act’s enforcement, ruling it was within IEBC’s administrative discretion.
The Court, however, cautioned that prolonged non-implementation undermines constitutional principles of transparency, integrity, and accountability in elections.

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Counting and Transmission of Results

Regulation 83 of the Elections (General) Regulations, 2012: Results counted, announced, and recorded at the polling station.

Presiding Officer forwards results electronically and physically to the Constituency Returning Officer.

Form 34A (polling station) and Form 34B (constituency) are key in presidential tallying.

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The Maina Kiai Case (2017)�

Case: Independent Electoral and Boundaries Commission v. Maina Kiai & 5 Others [2017] eKLR.

Issue: Whether national tallying centre can alter constituency results.

Court of Appeal ruling:

Constituency Returning Officer’s results are final for presidential elections.

National tallying centre’s role is collation, not alteration.

Based on Articles 86 and 138(3)(c) of the Constitution

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The 2017 Presidential Election Dispute

Supreme Court Petition No. 1 of 2017 – Raila Odinga & Another v. IEBC & Others.

First-ever presidential election nullified in Africa on procedural grounds.

Court found:

Irregularities in electronic transmission.

Non-compliance with Articles 81 and 86 (free, fair, verifiable elections).

Results announced without all forms being verified.

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Grounds for Nullification

Article 81(e): Elections must be free, fair, transparent, and administered impartially.

Article 86(a–d): IEBC must ensure votes are counted, tabulated, and results accurately collated and promptly announced.

Court held that process integrity is as important as the final numbers.

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Role of Citizens and Observers�

Civic vigilance complements institutional oversight.

Citizen observers enhance credibility and deter malpractice.

Whistle-blowers and media hold power to document truth.

Electoral legitimacy grows from public participation, not decrees.

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Electoral Offences and Consequences

Election Offences Act, 2016 criminalises:

Bribery and treating.

Personation and multiple voting.

Use of violence or intimidation.

Misuse of public resources during campaigns.

Convictions attract fines and disqualification from elections.

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IEBC Reforms and Institutional Challenges�

IEBC (Amendment) Act, 2024: Reconstitutes the Commission; expands the selection panel from 7 to 9 members for greater inclusivity.
New Expertise: Law now requires Commissioners with ICT and Accounting backgrounds to strengthen technical oversight.
Post-Election Review: IEBC must publish an election evaluation report within 18 months after each General Election.
Strategic Direction: Developing 2024–2029 Strategic Plan aligned with BETA priorities.
Operational Focus: Upgrading KIEMS kits, enhancing voter registration, and refining boundary delimitation.

Ongoing Challenge: Maintaining independence, managing leadership transitions, and rebuilding public trust.

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The Future of Kenya’s Democracy

Constitutionalism must anchor every election.

Public education sustains electoral credibility.

Youth participation defines democratic renewal.

Trust is built on consistent fairness, not perfection.

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Call to Action

Register. Verify. Vote. Protect.
Exercise your sovereign power (Article 1).
Participate in public debate and policy processes.
Hold institutions accountable lawfully and constructively.
Believe in the ballot as an act of nationhood.

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“If you don’t vote, someone else will and chances are, they don’t think like you, live like you, act like you or fight for what you believe in.”��-Brian Sengeli, Policy & Governance