A Step-by-Step Guide for Journalists (Part 2) for Monitoring the Kenyan Elections
From the closure of the polling stations to the declaration of results -there have been changes in the process in the last few days before 27th of July 2017 when this page was published, and there might be more changes. Keep your eyes open – we will try to keep this page on RoGGKenya.org up to date. (Last Update: August 7)
1. Closure Time
Ordinarily, the polling station should close at 5 p.m. However, those in the queue by 5pm are allowed to vote as required by Election Regulation 66 (2), whereafter the polling station must close. Voters who joined the queue after 5pm are not allowed to vote (Regulation 66 (1) .
The Presiding Officer (PO) must postpone the closure of the polling station by the period of time its opening was delayed or by which he/she adjourned the voting due to unrest or other valid reasons. (Regulation 64)
If the closure is late, find out the reasons. The Presiding Officer also has to fill out a detailed report giving the reason – Regulation 64 (4). You can verify reasons of late opening and closure from Political Party Agents and Observers.
2. Handling of the ballot boxes
All ballot boxes must be visible for those present in the polling station at all times. The Presiding Officer has to seal the aperture of all six boxes and allow the agents to apply their own seals. (Regulation 67, 3 and 5). This must also happen during a temporary closure of the polling station and when the boxes are being transportetd to another station. The serial numbers of the seals are recorded by both the Election Officials and Political Party Agents.
3. Polling Station Diary
The content of documentation is vital to prevent rigging. Journalists should therefore document the content of the forms and the polling station diary. If the PO does not allow you to take pictures of the content. Ask him/her why, because these are public documents.
Immediately after closure of the polling station the PO must note in the Polling Station Diary the following data :
- the number of ballot papers that were issued to him
- the number of ballot papers issued to voters, except for the spoilt ones
- the number of spoilt ballot papers (Regulation 71)
- and the number of ballot papers remaining unused
The latter three must exactly sum up to the number of ballot papers that were issued and delivered to that polling station. Is that the case?
The Station Diary is the only document where the total number of ballot papers that were given to voters is documented. This number does not appear on the forms that document the voting results. In the case of “ballot stuffing”, the number of votes cast would be either higher than the number of ballot papers given out or higher than the number of voters that were registered as persons who appeared at the polling station and whose names were crossed out in the written voter register (as well as marked in the electronic voter register contained in the tablet computer at the polling station). The presiding officers have to keep all voting material at a safe place after the elections. The station diaries are included in this provision. So we may ask later for it.
4. The KIEMS data
What exactly happens with the voter data in the tablet computers (KIEMS) is not determined by the Regulations. This has probably undergone changes in the process. The IEBC has communicated that the number of voters who voted at the respective polling station is transmitted to the IEBC every five minutes. For this, the gadget can use three different GSM networks and one dedicated WiFi network that the IEBC was to set up. If the data transmission works, it is a double. Check opportunity against “ballot stuffing”, because this would result in an inconsistency of the number of voters and the time of their voting with the flow of data from the gadgets to the IEBC Central Computer.
5. Observe, if proper counting procedure is followed
5.1 Presence of Media (among other observers and agents)
As an accredited media representative, you are entitled to observe the counting process – Regulation 74 (4) (e) – and the tallying process.
5.2 Prescribed Order of Counting
This is the order in which the votes for all six electoral positions should be counted -see Regulation No. 75 (2):
- MP – Member of the National Assembly
- MCA – Member of County Assembly
- County Women Representative for the National Assembly
- County Governor
This order is related to the level of tallying centres which will declare the results:
1 National Tallying Centre
2 Constituency Tallying Centre
3 County Tallying Centre
It also means that a regionally a working reporter should move from the polling stations to the constituency tallying centre first and thereafter to the county tallying centre – if there is no other way of getting results via the Electronic Transmission of Results (see below!).
5.3 Note which persons are present during the counting
The list of those who may be present is to be found in Regulation No. 74. It also stipulates that agents who follow the counting process must have presented their credentials to the PO 48 hours before the close of the poll in that polling station. Otherwise they are not allowed. Do you see conflicts arising around this, or agents that have not been properly registered in this way?
5.4 Agreement on Rejection of Votes
Note: The Agreement as to which Ballots are counted as validly cast for a Candidate:
To avoid later conflicts the agents and the presiding offers should agree on what in general is to be counted as a valid vote and what is to be rejected.
5.4 The actual Counting Procedure (Regulation 76)
Are they following it?
- The process shall be continuous and not be interrupted, “so far as practicable.” Regulation 75 (4)
- The PO shall empty the ballot box onto the counting table for sorting purposes.
- The PO takes one ballot paper after another, displays it to the observers and agents for verification of the ballot
- He should call out the name of the candidate in whose favor the vote was cast.
- In the process he should place the ballot papers on a separate pile for each candidate,
- Then should count the votes for each candidates and
- Fill out the result on the tallying sheet (Form 33 in the Regulations Schedule)
6. Rejected Ballot Papers (Regulation 77)
6.1 Criteria for Rejection:
The following ballots shall be rejected by the PO:
- Those lacking a security feature
- Thos on which nothing is written
- Those that are not marked in a way that one – and only one – candidate can be identified as the desired one
- Those that bear an unfitting serial number or one that has no counterfoil in the ballot booklet
- Those that are unmarked
- Those that bear signs that may be used to identify the voter
update August 7: Those not bearing the IEBC stamp shall be counted as valid, even though the officers are still advised by the IEBC to stamp the ballot! This was written in an internal IEBC memo on August 3, 2017 only, so it may well be that not all presiding officers are aware of it. To be unstamped is not a reason for rejection in the list of Regulation 77.
For each rejected ballot paper, the PO has to fill out a line in Form 41 of the Regulations Schedule. The paper is to be marked with “rejected”.
6.2 “Rejection Objected” and “Disputed”
Candidates and their agents may object to the rejection of a ballot paper (“rejection objected”) or they may object to a ballot paper that has been counted as valid (“disputed”)
They may also demand a recounting of the votes for one time.
6.3 Results Forms – and the signatures on them
The results as well as the number of the votes cast, the number of rejected and objected and disputed votes have to be documented in the results form for the respective post. See Form 34A as an example for the Presidential Election. The other forms are 35A, 36A, 37A, 38A, 39A.
All of the candidates and agents present are asked to either sign the declaration of results or give a reason should they refuse to sign.
- Were there many such conflicting views at certain polling stations? Why?
- If a candidate later refuses to accept the outcome of the voting, ask if he or his agents were present at the level of the polling station and had their dissent been documented. If not, ask why.
7. Tallying of the Votes
The Court of Appeals has ruled that the results announced at the polling stations are final and may not be altered at the tallying centres. http://kenyalaw.org/caselaw/cases/view/137601/. That ruling reduces the tallying centres to a mere place where mathematics are applied and results announced. The Returning Officers at the different tallying centres are also in charge of determining and declaring the candidates who have been elected.
Levels of Tallying Centres.
The constituency tallying centre collates the votes for all the positions. It declares the official results for Members of County Assembly and Member of National Assembly. It forwards the tallying results of the other positions to the County Tallying Centre.
The Tallying Centre for the County transmits the tallying results for the President to the National Tallying Centre and declares the candidates who were elected as County Governor, Woman Representative to the National Assembly and Member of Senate.
The National Tallying Centre tallies the results of the Presidential election and declares the winner. Or the National Tallying Centre determines that no candidate got more than 50 percent of the votes and that no new president has been elected yet – Regulation 87 (4).
Upon this, the IEBC commission will publish a gazette notice for a fresh presidential election within two days.
8. Tallying Process and Electronic Transmission of (Provisional) Results
8.1 ETR Transmission of Data
On July 26 the IEBC finally released details on how it will handle the electronic transmission of PRESIDENTIAL electon results with the “ETR”-software in the Kenya Integrated Election Management System (KIEMS), which is the tablet computer the officers are using. There is unfortunately no mentioning of the handling of the other five positions yet. Watch out for news about this.
8.2 The Presidential Tallying Process
After tallying and announcing of the results at the polling station, the Presiding Officer in the presence of party agents shall:
- Type into the KIEMS tablets the results as captured in Form 34A.
- Scan Form 34A using KIEMS tablet.
- Confirm that the typed results and the results on the scanned form are accurate.
- Electronically transmit the results to the Constituency Tallying Centre and the National Tallying Centre.
Form 34 A shall be made available on an “online portal”, the IEBC writes, and we can guess this applies to the filled-out forms. Because we already know how Form 34A looks like.
The National Tallying Centre will, however, collate the Presidential results from the Forms 34B which are written and scanned the constituency level.
8.3 Detailed procedure for other Positions
It can only be guessed that the process for the other five elected positions is similar, with the only difference being that the final tallying happens at the constituency or county level respectively.
8.4 ETR-Results are Provisional – but what does that mean in practice?
Regulations No. 82 call the Electronic Results “provisional”, which means that the ones on paper are the official ones. The electronic results are however a way of “safeguarding” the outcome of the elections, the IEBC has declared. And the IEBC has placed a higher priority to the electronically transmitted results by saying that, “It is not mandatory for the Returning Officers to “troupe” to the National Tallying Centre with hard copies of the collated results.” Which in effect probably means that the officers there will have to believe what they see on the scans of the Forms 34 A if it is identical with the electronically transmitted results, even though in theory only the filled out forms on paper are valid.
8.5 Access to the electronic Results and scanned Forms
The IEBC has declared: “The Commission also resolved to avail a dedicated link to the Media for purposes of relaying the results as received from the polling stations across the country.
The Commission shall also display the results as received from polling stations in all the tallying centres. The same results shall also be available on a web portal.”
We will try to find out what this specifically means for access to ALL results, not just the presidential results.