Kenya National Commission on Human Rights
Nairobi, 12th August 2022
HUMAN RIGHTS UPDATE ON THE VOTES COUNTING, TALLYING, AND TRANSMISSION OF RESULTS
The Kenya National Commission on Human Rights (KNCHR) issues this second brief following its monitoring exercise in over 250 Constituencies across the country. From the onset, the Commission notes that the transmission of results from the polling stations to the Constituency, County and National Tallying Centers went on fairly well and that the IEBC has been prompt in uploading the Forms 34As and 34Bs in the online portal. The Commission applauds IEBC for its tireless efforts as this prompt action facilitates access to information for all and enhances transparency in the transmission of the 2022 general election results. The Commission further lauds the Inspector General of the National Police Service and the Director of Public Prosecutions for the swift action and timely responses and actions that have been demonstrated by their officers in the past few days to apprehending holding to account those implicated in electoral malpractices.
The above observation notwithstanding, and in view of attaining prompt action for human rights gaps in this year’s electoral process, the Commission wishes to highlight the following areas of concern observed during the votes Counting, Tallying and Transmission phases.
- Attacks on IEBC Officials and Violence at Tallying Centers:
The Commission notes with great concern the rising trend of blatant disruption of electoral process at the Constituency tallying centers. While the law allows for aspirants through their agents to observe the counting and tallying process, it is paramount that this right does not infringe on the work of electoral officials. Any attack on the IEBC officials and the destruction of voter materials at tallying centers is a serious criminal offense as it interferes with the electoral process and the will of the people. The Commission has documented various cases of interference and attacks at tallying centers and notes that the security personnel has in all cases taken swift action to restore order. In some of these disturbing cases, the Commission has evacuated its monitors in tallying centers in Kirinyaga and Vihiga Counties where violence broke out. Other disruptive cases have been recorded as follows;
- In Kwale County, Matuga Constituency, at the KSG Constituency tallying centre, aspirants entered the tallying centre demanding that the tallying process be stopped claiming that the KIEMS Kits have been tampered with. Chaos erupted and National Police Service officers vacated all the aspirants and election observers.
- In Kirinyaga County, members of the public allied to one of the gubernatorial candidates forced their way into the Kianyaga tallying center in a bid to stop the process alleging that votes for their candidates were being altered. The police officers managed to calm the situation and the tallying process continued. In the same tallying center, one of the gubernatorial aspirants and her supporters stormed the center alleging vote-rigging process and claimed to have intercepted a County government car outside the center that was ferrying voting materials. This compelled the IEBC Returning Officer to re-tally the count after which all parties concurred to the re-tallied results.
- In Wajir County, violence erupted in Wajir North Constituency tallying Centre after one of the candidates protested the results from Sala Centre, Batalu Ward. Police officers used gunfire and tear gas to disperse the crowds.
- In West Pokot County, police dispersed crowds at the Kapenguria Constituency Tallying Centre after members of the public alleged that there was a car that had ferried ballot papers with intentions of entering the tallying center.
- In Kirinyaga County, the tallying process at one of the Constituency tallying centers was halted and IEBC officials were whisked to safety after a gubernatorial candidate marshalled crowds with the intention of stopping the tallying process. As at yesterday night, the tallying center had not been re-opened for the process to continue and protests were taking place in Kerugoya town.
- In Vihiga County, Hamisi Constituency Tallying Center, violence erupted when rowdy youths wielding machetes stormed the tallying center. Police officers had to resort to use of teargas to disperse the crowd and restore order at the tallying center.
- Selective Application of Procedures by IEBC Officials:
The Commission in its monitoring exercise continues to observe the diverse application of standards being exhibited by IEBC officials in their electoral process duties across the country.
The Kenya National Commission on Human Rights field monitors across the country have reported varied standards on the requirement of pinning the results of Form 34As at the polling stations after the determination and declaration of results. The majority of the polling stations observed by the Commission monitors shows that IEBC officials did not pin the Form 34As openly and at strategic locations of the polling stations as has been the norm in past elections. The Presiding Officers concerned indicated it was a directive received from the Returning Officers and as such they only allowed photographic evidence of the carbon prints which in most cases were hardly visible.
The Commission wishes to bring to the fore that law under Section 39(1) of the Elections Act is very clear that the IEBC shall determine, declare and publish the results of an election after the closure of the polls. Further regulation 79 (2) (A) of the Election (General) Regulations provides that the IEBC Presiding Officer shall affix a copy of the declaration of the results at the public entrance to the polling station or at any place convenient and accessible to the public at the polling station. The Kenya National Commission on Human Rights calls upon the IEBC leadership to immediately issue a directive to all Presiding Officers to comply with this directive as it not only facilitates access to information to members of the public but also enhances transparency and curbs malpractices.
Another observation by the Commission on the wide-ranging standards was on facilitating observers to carry out their role at the polling stations and in tallying centers. Electoral laws and regulations allow for accredited persons and institutions to be present at voting and tallying centers as a mechanism of enhancing transparency and accountability of the election process. However, some Presiding Officers and Returning Officers were restraining observers to access centers demanding for introductory letters and oaths of secrecy which were only applicable to party agents.
- Social Media and the Electoral Process:
The Commission appreciates the role of technology and its impact on efficient information dissemination from various parts of the country. Social media platforms have been awash with campaign messages, peace advocacy and general election governance messaging that were to facilitate voters to be ready for the just concluded polls. However, the Commission reminds members of the public and leaders, especially during these tense moments of results announcement that the platforms should not be used for mis/disinformation or to whip up public emotions. Social media is just a court of public opinion but not a legal institution that can offer instant redress. Thus, the Commission calls upon leaders and citizens not to use these channels to instigate unrest but rather employ the use of the rightful legal channels such as the Courts to seek justice and redress in the event of any grievances.
Roseline D A Odede, HSC
Kenya National Commission on Human Rights