Recommendations in relation to chapter 2
Concerning the constitutional and legal framework
* The right to citizenship, to vote and to be elected at genuine periodic elections should be included in the Constitution.
* Voting by universal and equal suffrage and by secret ballot should be guaranteed for all without discrimination.
* Section 34(c) of the Constitution should be amended so as not to discriminate against persons with disabilities.
* All laws relating to the operational management of elections should be consolidated under one statute.
* A separate law should be enacted to cater for electoral dispute resolution starting with the ECK. The law should, in addition:
¾ establish an Electoral Dispute Resolution Court with the final jurisdiction to handle electoral disputes
¾ entrench a statutory limit to ensure that election petitions are finalised in good time. A limit of not more than six months should be adequate.
• The current rules and regulations on the procedures of election petitions should be repealed and replaced with new rules that ensure that petitions are heard in a just and timely manner.
Recommendations in relation to chapter 3
Concerning the ECK’s legal framework
• There should be enacted a dedicated law with more detailed provisions on the ECK’s institutional aspects which takes into account the relative complexity of the organisation and its responsibilities.
Concerning the composition of the ECK and the appointment of commissioners
* Legislate a broad consultative process prior to the appointment of ordinary members and the chairman of the ECK.
* Reduce the maximum number of commissioners.
* Reorganise the expiry of the terms of office of ECK members to ensure that their retirement does not coincide with election years and that all commissioners have at least two years’ experience before every election.
* Make the ECK accountable to Parliament, without prejudice to its status as an independent body, by reviewing the channels by which it establishes and seeks approval for its budgetary requests.
Concerning the ECK’s operational procedures
* Review the ECK’s administrative procedures, with a view to introducing as much certainty as possible in key operational areas so as to ensure uniformity of performance throughout the electoral process, from polling station level up to the various teams at the national tallying centre.
* Review ECK’s overall training/briefing procedures in order to improve on their utility for adult learners.
* In the recruitment of temporary election officers, commissioners should vet the recruitment of returning officers only: they should establish clear procedures for the recruitment of other staff and ensure these are strictly implemented.
Concerning the structure of the ECK Secretariat
* Urgently reexamine the roles of commissioners vis-à-vis those of staff, with a view to establishing a clearer commission-management separation of roles.
* Establish clear lines of individual responsibility for service delivery among both commissioners and staff.
* Rationalise the ECK operating structure to reduce time devoted to committees.
* Rationalise the devolved structure of ECK offices with a view to making it functionally efficient between elections and in election years, possibly down to eight provincial offices to provide a limited coordination role between elections.
* Revise ECK Secretariat structure with a view to introducing performance management across the board.
* Ensure that the Commission Secretary, among other qualifications, is an experienced election manager, competitively recruited from the open job market, and has the status of Permanent Secretary.
Concerning ECK funding modalities
• Carefully consider the issue of the ECK’s expenses being a charge on the Consolidated Fund.
Concerning the ECK’s advisory role
* Enumerate ECK’s roles to include advising the government, Parliament and other stakeholders on electoral law reform.
* Take ECK’s advice henceforth more seriously than has been the case in the past and deliberate such proposals expeditiously with the ECK and with other stakeholders, with a view to incorporating them into electoral law.
Concerning the ECK’s functional efficiency
• Undertake a thorough management systems review of a new or transformed ECK as a matter of urgency.
Recommendations in relation to chapter 4
Concerning nominations
* A standing liaison committee should be set up comprising the ECK and political parties as a first step towards the enactment of nomination rules which must be strictly adhered to.
* Once Parliament has been dissolved no more political parties should be registered and application for party symbols should also be suspended.
* The campaign period should be specifically defined and ECK must ensure that all parties comply with the Electoral Code of Conduct.
* The election date should be pre-set, taking into account all the required timelines for efficient conduct of the election.
* Where a party violates its constitution and regulations on nominations, the ECK should invoke and enforce its powers to deny it the opportunity to nominate candidates to compete in elective politics.
Concerning the media
* The Media Council of Kenya should oversee the conduct of media and properly enforce its Code of Conduct.
* Develop a media and elections policy to encourage accurate and responsible reporting on electoral matters.
* There should be full disclosure on a regular basis of the actual owners of media.
* The KBC Act should be amended to give the ECK the power to compel KBC to act in accordance with the law.
* Mechanisms should be set up to ensure the independence and public accountability of KBC.
* The access to KBC by the Presidential Press Service, particularly in an election year, should be reviewed.
* Key provisions in the KBC Act pertaining to free access slots for party political broadcasts should be clarified and precisely defined as to the rights of the parties and candidates.
* A substantive Act prohibiting hate speech should be considered.
Concerning CSOs and election observers
* The ECK and CSOs should be encouraged to work together, and particularly in voter education as this eases tensions and improves delivery.
* The ECK should select trainers and facilitators should be done through a transparent process and the criteria for a neutrality test determined in advance and published.
* Bodies (including FBOs) which have relationships with either the ECK or political parties or are established to have acted in a partisan manner in an immediately preceding election should be excluded from domestic observation.
* A permanent domestic observer group should be constituted comprising diverse civil society interests.
* Co-operation and co-ordination of local, regional and international election observer groups should be encouraged.
* Election regulations should be amended to allow observation of the tallying process at all levels and provide copies of all authentic statutory forms to observers.
Recommendations in relation to chapter 5
Concerning constituency delimitation
* The basic principle for the delimitation of constituencies should be the equality of the vote, and the maximum departure from that principle should be clearly defined in the law (equality of voting strength should be aimed at in all cases although in special circumstances a 5-20% deviation range could be accepted).
* The process of delimitation should be transparent and conducted in consultation with the public.
* Establish a Boundary Review Commission (BRC) and remove constituency delimitation from the ECK.
* The first delimitation should take place as soon as possible and thereafter should follow the population census.
* Delimitation should be completed at least 18 months before a general election.
Concerning registration of voters
* Move to a new registration system: As soon as possible integrate the issuance of the national ID card with voter registration, so that when someone requests an ID card, s/he will automatically be entered in the voter register and informed of the location of the polling station where s/he should vote (a cheap voter card containing such information can be provided).
* Simplify qualifications for entitlement: Entitlement to vote should be based on residency, unless there are strong arguments for maintaining some of the other categories presently included.
* Requirement of voter’s card for voting: This is a redundant requirement. If their
name is in the register, voters should be allowed to vote with the simple presentation of the national ID or passport.
Concerning candidate nomination
* Consider establishing a special electoral court to deal expeditiously with disputes arising from party primaries.
* The ECK should establish a clear, non-adjustable timeframe within which all parties should hold their primaries and certify their nominees.
* Electoral law should be amended to require political parties not only to conduct elections in accordance with their constitutions or rules but also to conform to established standards of fair practice.
Concerning electoral preparations
* Review and update the job descriptions of all relevant temporary positions to take account of additional skills essential to the competent management of a modern, IT-facilitated electoral process.
* Enhance the training of returning officers to match the importance of their function in the electoral process, as well as consider earlier selection and recruitment to allow a longer period of training and engagement in ECK work.
* Involve personnel at each level should be involved in the training of personnel one level below, to permit greater familiarity with the chain of work (for instance, national tallying centre should be involved in training returning officers for the tallying and transmission of results).
* Outsource the selection of key temporary personnel to third-party agencies, with a requirement for testing of some essential skills (e.g. IT).
* Actual participation in electoral activities should be made conditional on verified participation in all prescribed training events.
* Review all training and operational manuals to ensure that they actually conform to the latest operational procedures in force.
Concerning voter information and education
* Long-term investments in voter/civic education/information campaigns are advisable.
* This activity should not only occur during an election period or year, but on a consistent basis every year.
* Voter/civic education/information campaigns should focus on local elections too.
* Involving young people, particularly students, might help to interest younger voters and would also strengthen bonds between older and younger elements of communities.
* For effective communication the design of voter education material should factor in the various needs and interests of target groups.
* Introduce simplified teaching of the key principles and values relating to the right to vote in schools from the elementary stage.
* Programmes such as “Vijana Tugutuke”, which was focused on youth, need to cover a large area and this should not be only in urban areas.
* Encourage public forums such as round tables at which specific local issues can be discussed.
* Voter education should teach the Electoral Code of Conduct and highlight the ill effect of fraudulent election practices.
* Linking voting to community issues is very important.
* Vet organisations well in advance so as to have candidates for conducting voter/civic education/information campaigns
* Put monitoring and evaluation in place to ensure that CSOs responsible for voter/civic education/information campaigns conduct the programmes properly and in accordance with ECK guidelines.
* Patience, tolerance and long-term commitment are needed to help Kenyan communities overcome the barrier between them and full civic participation and leadership.
Concerning regulation of political campaigns
* The ECK should immediately promulgate regulations for the Political Parties Act not only to provide a clearer legal framework for the registration of political parties but also to achieve the political finance objectives of the Act.
* Electoral law reform should give powers to the ECK to enforce its orders. This should include barring errant candidates if they defy the ECK’s orders.
* The plethora of provisions against the involvement of public servants in elections should be consolidated into one provision in the consolidated electoral law and also bar the use of any public financial and material resources.
* Adequate monitoring mechanisms to collect information on public servants involved in partisan political activity must be in place for use in prosecution and other penalties sanctioned by law.
* Reintroduce realistic and functional expenditure caps on election expenditure.
* The Attorney-General should appoint public prosecutors for the ECK to prosecute election offenders.
* Additional consideration should be given to all relevant electoral laws to provide the ECK with prosecutorial powers over all election offences.
Concerning regulation of freedom of expression and equitable access to media
* Enhance the constitutional guarantee of the right by a provision restricting hate speech.
* Media, especially State-owned media such as KBC, should strive to offer balanced coverage to all the players in the election as is required by KBC’s establishing statute and enhanced by the IPPG agreement.
* The ECK should ensure that the media receives correct and timely information so as to mitigate the possibility of misinformation such as was witnessed in the 2007 election period.
* Media houses should ensure that they recruit professional reporters and editors and, in the case of talk-shows and call-in programmes, avoid using staff who are ignorant of conflict reporting or moderation.
* Media houses should ensure that they liaise with the ECK before publishing results to ensure the reliability and accuracy of the information they pass on to their readers/audience.
* The ECK or its successor should urgently devise and implement a sound media relations policy and strategy.
Concerning technical assistance received by the ECK
* Thoroughly evaluate the assistance provided by the international community to the electoral process and apply the lessons learned.
* The assistance to be provided by the international community should be carefully co-ordinated and defined well in advance of the electoral process.
Concerning management of polling day operations
* Take steps to eliminate bribery, including stronger sanctions – like disqualification - for candidates involved in it.
* Discontinue the complementary practice of allowing assistance on the basis of illiteracy and adjust voter education programmes accordingly.
* Stop using black books(consider destroying them) and consider using tendered ballots instead.
* Assure party agents’ access to polling stations and tallying centres: and the only restriction should be the maximum number of persons that the polling station or the tallying centre can reasonably accommodate.
* Party agents should be adequately identified and, in the case of tallying centres, be issued with special tags.
* In joint elections, hand all three ballots to the voter at the same time, and stress this point in training and in voter education.
* Make every effort to make polling stations accessible to all voters, especially people with disabilities and the elderly.
* Issue a checklist to electoral officials surveying polling stations to assess whether the polling stations are accessible to all categories of voters.
* Polling stations need to be well designed to allow for easy entry and exit. Further, the safety corridor needs to be restricted to ECK personnel, party agents and those voting.
* Party agents need to undergo ECK-supervised training (the same training as poll workers) and should not be allowed into the polling station unless they have undergone the training.
* After training all poll workers and party agents need to be sworn. Training should identify the penalties for perjury, fraud and rigging.
* Train one poll worker as a “greeter” for each polling station to ensure that voters are directed to the correct polling place.
* On election day, the ECK should provide polling station staff with food and
water. Party agents should not be allowed to provide food.
Recommendations in relation to chapter 6
Concerning counting, tallying, and announcement of results
* Integrate the various descriptions of the entire counting and tallying procedure into one document only, which will then be the principal description and must be adhered to.
* Without delay have developed an integrated and secure tallying and data transmission system.
* Media must have full access to this new system.
* Ample time must be given for verifying provisional results, so that they are only declared final/official, when there is no risk that errors can still be found or non-frivolous objections raised.
Recommendations in relation to chapter 7
Concerning post-election audits and evaluations
* Institutionalise the practice of post-election audits and evaluations and improve the quality of the objective data involved.
* Publish all polling station results (form 16A) on the ECK website to ensure transparency.
* Post-election audits should be conducted by external auditors and made public.
Concerning post-election dispute resolution
• Establish an appropriately composed and empowered special electoral dispute resolution court.
Concerning swearing-in and assumption of office
• Introduce a transition period between a successful candidate’s election and his swearing-in.
Concerning custody of election materials
* Develop procedures for safe storage of election materials until any post-election analysis is complete.
* Store certain relevant election materials (such as the election results) in electronic format.
Concerning allocation of nominated seats
* If it is decided to retain nominated seats, specify an electoral formula.
* In terms of the use of the nominated seats to support underrepresented groups or special interests, rather devote all of them to improve the representation of women in Parliament.
* The Constitution or the law should clearly define what special interests or groups should benefit from reserved seats.
* Use reserved seats with voice but no vote rather than nominated seats for persons with disabilities and ethnic minorities.
* Do not allocate reserved seats to women, youth, trade unions, geographically marginalized communities or other minorities.
* Consider leaving the President a margin for appointing ministers who are not MPs.
* The ECK should fill nominated council seats from a list presented by the political parties.
Concerning analysis of post-election procedures
* Amend the Constitution to eliminate all doubt as to the expiry of the President’s term of office.
* Consider amending the Constitution to provide for fixed terms of office for the President and Parliament together with concomitant provisions for an electoral timetable.
