IEBC now questions new electoral laws

The Independent Electoral and Boundaries Commission (IEBC) has raised concern over implications of the new electoral laws on its preparations for the 2017 General Election.

With just 10 months away to the elections, IEBC is citing implications of provisions on auditing of the voter register, capping number of voters per polling station, selection and nomination of candidates, use of ICT in the electoral process and pending reforms under the Election Laws (Amendment) Bill 2015, to its preparations for the national polls.

The Election Laws (amendment) Act 2016 and Election Offences Act 2016, came into force on October 4, 2016, arising from negotiations spearheaded by the Joint Parliamentary Select Committee on IEBC.

In an unsigned copy of a briefing to Parliament’s Justice and Legal Affairs Committee (JLAC), dated 18 October 2016, IEBC Chief Executive Officer Ezra Chiloba wants Parliament, for instance, to review the capping of voters per polling station, set at 500, noting challenges it may encounter in implementing such a provision, including the financial implications this may have.

Significant costs

The commission has recalculated the 2016/17 and 2017/18 financial year budgets based on the changes to the election laws, with significant costs, including that of the voter register inspection (Sh3.1 billion), the General Election (Sh7 billion), and legal and compliance costs, that would include publishing of additional gazette notices for party primaries (Sh296m).

“The commission is required to cap the number of voters per polling station at 500 voters. With the current register standing at 15.87 million votes, the commission projects that the number of polling stations required is 44,000. If we extrapolate the number of registered voters to 22 million, the commission will have to create over 57,000 polling stations,” reads the brief in part.

“There are areas where available infrastructure will not allow the creation of additional polling stations. This will be a challenge for the commission. For that reason, the commission recommends that the law be amended to give it discretion to determine such other number to cater for emerging situations”.

The commission also points to the new laws’ provisions on the auditing of the voter’s register, which mandates IEBC to engage services of a reputable firm to carry out the exercise.

The electoral body advertised Expression of Interest inviting competent firms to bid on October 10. Even though the opening of the Expression of Interest was conducted on October 17, the firm, based on procurement timelines, is expected to come on board on November 28, way beyond the statutory deadline set by the new law.

The new law requires verification of voters using biometric data for a period of 30 days, at least 90 days before the election, which means the register must be opened 120 days before the polls.

IEBC argues that unlike before, verification must be done at all polling stations. This means verification, which in 2013 was conducted in 24,000 registration centres, will have to be done in about 57,000 polling stations if the cap on 500 voters per station is observed.

This, according to the commission, will represent 100 per cent increase, in terms of points of verification and time required, with additional cost implications projected at Sh10.7 billion.

“The new law currently requires the commission to avail electronic devices at all polling stations for purposes of biometric data verification. It is obvious therefore that a new operational design and additional resources will be required to cater for increased centres of verification and methodology of verification,” reads Chiloba’s brief.

Dispute resolution

While the new law obliges the commission to heed to requests of a political party that may seek its help to conduct party primaries, the electoral body notes that the process of resolving disputes arising from both party primaries and nominations is not factored.

Parties are required to conduct their primaries 60 days before the elections, which would ideally be between May 26, 2017 and June 9, 2017. The commission notes that since sequencing of the processes highlight potential overlaps, it is important for political parties to be encouraged to start their processes earlier than is set out in law.

IEBC also wants Parliament to give clarity on the aspect of funding of party primaries given that the law omits the requirement for parties to finance their primaries in the event that they ask the commission to conduct the process.

The commission is also concerned that the requirement to gazette party primary candidates has cost implications that have not been budgeted for in the current financial year.

On the use of ICT in the electoral process, IEBC notes that the new law requires procurement of the technology be done at least eight months before the elections.

“In this regard, the commission is expected to develop specifications, advertise, evaluate, award and receive the equipment by December 8, 2016. Clearly, the timelines provided for in the new law are at variance with the Public Procurement and Assets Disposal Act 2015 (PPAD). When crafting the new law, Parliament did not take into consideration timelines required to procure ICTs in an open and transparent process as set out in the Act”.

While inviting Parliament to look at the two laws and address the necessary gaps, the commission notes that it will operate on the assumption that the PPAD is a superior piece of legislation in matters relating to procurement and hence supersedes the electoral laws, where timelines clash in the two processes.

Although the commission is expected to develop and submit to Parliament regulations on the use of ICT in elections within 30 days of the law coming into effect, (which in this case would be by November 2, 2016,) it is asking for the timeline to be reviewed to at least 60 days to do justice to the process.

IEBC also points to pending reforms under the Election Laws (Amendment) Act 2015 that include the matter of education qualifications for MPs and MCAs, timelines for dispute resolution in party primaries, and timelines for submission of party constitutions and nomination rules it would like parliament to look into.