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.
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;
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.
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