Kenya Elections Amendment Bill: MPs Reject Clause 22 as IEBC Livestreaming Row Intensifies
The controversial clause had proposed repealing and replacing Section 39 of the Elections Act, introducing a framework that would make results declared at polling stations final while requiring presidential election results to be electronically transmitted within two hours. It also proposed removing the express statutory requirement for the electoral commission to establish a mechanism for livestreaming results announced at polling stations.
However, following parliamentary scrutiny and a High Court judgment delivered on September 22, 2026, MPs deleted the proposed clause. The National Assembly maintained that the decision preserved the existing Section 39, including the livestreaming requirement under subsection 39(1G).
Principal Secretary for Parliamentary Affairs Aurelia Rono defended the decision, explaining that the House had considered the court’s guidance when reviewing the proposed changes.
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“Cognisant of the guidance of the High Court, the National Assembly deleted Clause 22 to ensure the retention of Section 39 as it is currently provided for in the Elections Act and also retained the requirement for livestreaming as provided for under Section 39(1G),” Rono stated.
Why Clause 22 Became a Major Electoral Controversy
Clause 22 was among the most closely scrutinised provisions in the Elections (Amendment) (No. 2) Bill, 2024, because it proposed significant changes to the way presidential election results would be managed.
The legislation originated in the Senate as part of broader electoral reform discussions following concerns surrounding the administration of previous elections. It sought to address several aspects of electoral administration, including voter registration, political party nominations, electoral disputes and the management of election results.
The Senate passed the Bill in December 2024 before it proceeded to the National Assembly for consideration. Its proposed changes to Section 39, however, attracted particular attention because the provision governs the determination, transmission and declaration of election results.
The proposed replacement would have required the IEBC to determine, declare and publish election results immediately after the close of polling. It also sought to establish the legal primacy of polling station declarations.
Although the proposal aimed to establish clearer procedures for handling presidential election results, its treatment of livestreaming and existing discrepancy safeguards raised questions about transparency and accountability.
What the Proposed Two-Hour Transmission Rule Meant
One of the most significant elements of Clause 22 was the proposed requirement that presidential election results be electronically transmitted within two hours after their declaration at polling stations.
Under the proposed framework, the IEBC would have been required to transmit the results to constituency and national tallying centres, presidential candidates or their agents, and election observers.
The proposal also sought to introduce a reporting mechanism requiring the commission to provide reasons whenever results were not transmitted within the stipulated period.
Physical delivery of tabulated results would have remained part of the process. The IEBC would still have been required to receive, tally and verify the records at constituency and national tallying centres before publishing polling station results forms through its official online platforms.
This distinction is important because electronic transmission and physical delivery serve complementary purposes. Electronic transmission allows faster access to results, while signed physical records provide documentary evidence against which transmitted figures can be checked.
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The proposed two-hour requirement was therefore intended to introduce a specific statutory timeline for transmitting presidential results rather than eliminate the physical documentation process.
However, because Clause 22 was deleted by the National Assembly, the proposed deadline has not become a new statutory requirement through this amendment.
Polling Station Results and the Legal Question of Finality
The question of where presidential election results become final has remained central to Kenya’s electoral disputes.
Under Section 39 of the existing Elections Act, polling station records play a critical role in establishing the accuracy of results transmitted electronically.
Section 39(1E) specifically provides for the resolution of discrepancies between electronically transmitted and physically delivered results. The IEBC must verify the records, with the accurate record of results tallied, verified and declared at the respective polling station prevailing.
The Senate’s proposed replacement sought to express polling station finality more directly in the new Section 39. Nevertheless, the proposal also raised questions about how that wording would interact with constituency-level declarations and the IEBC’s constitutional responsibility to tally and verify presidential results nationally.
A distinction must be maintained between the declaration of results at polling stations, the collation of results at constituency level and the national verification process.
These stages perform different functions and should not be treated as interchangeable.
High Court Judgment Influences Parliamentary Decision
The September 22, 2026, High Court judgment became an important factor in the parliamentary debate.
In Okoiti & Another v Independent Electoral and Boundaries Commission & 5 Others [2026] KEHC 13916 (KLR), the High Court addressed the constitutionality of Section 39(1C)(b) of the Elections Act and Regulation 83(2) of the Elections (General) Regulations, 2012.
The court clarified that presidential results declared and certified by constituency returning officers are final and cannot be altered by the IEBC chairperson or other electoral officials during national tallying, except through an order of a competent court.
The judgment also explained that national tallying and verification remain necessary. The commission must aggregate constituency figures and establish whether the constitutional requirements for a presidential victory have been met.
Importantly, verification does not give electoral officials authority to add, subtract, cancel or otherwise alter certified constituency results.
The court further addressed discrepancies between electronically transmitted and physically delivered results, emphasising the importance of documentary evidence and collective decision-making within the commission.
The ruling therefore reinforced the importance of accurate records while preserving the constitutional role of national tallying.
Why Article 81 Matters in the Electoral Reform Debate
Article 81 of the Constitution of Kenya provides the foundation for evaluating electoral legislation.
It requires elections to be free and fair, conducted by an independent body, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner.
These principles are particularly important when Parliament considers changes affecting the transmission and publication of election results.
A reliable electoral system must protect the integrity of votes while allowing candidates, political parties, observers and members of the public to scrutinise the counting and declaration process.
The removal of Clause 22 means that the National Assembly has retained the existing Section 39, including the IEBC’s statutory livestreaming provision.
Section 39(1G) requires the commission to establish a mechanism for livestreaming results as announced at polling stations. It also states that streamed results are intended for public information and are not, under that subsection, the basis for the commission’s declaration.
Maintaining this distinction is important because public access to the counting process and the official transmission of results are separate aspects of electoral transparency.
Article 110(4) and the Bill’s Return to the Senate
The legislative process is another important consideration following the National Assembly’s decision.
Article 110(4) of the Constitution provides that when a Bill concerning county government has been passed by one House of Parliament, the Speaker must refer it to the Speaker of the other House.
This provision is relevant to the bicameral consideration of the Elections (Amendment) (No. 2) Bill, 2024, which originated in the Senate.
The National Assembly’s amendments mean that the Bill must return to the Senate for consideration of the changes introduced by MPs.
Article 112 also provides for the procedure where an ordinary Bill concerning county governments is passed by one House in an amended form. The originating House must reconsider the changes.
Consequently, the parliamentary process is not complete merely because the National Assembly has approved its version.
The final legislative position will depend on the remaining parliamentary stages and, where required, presidential assent before the legislation can become law.
What the IEBC Must Prepare for Ahead of 2027
The debate places renewed responsibility on the IEBC to demonstrate operational readiness before the next General Election.
The commission will need to ensure that electronic transmission systems function reliably across the country’s polling stations, including areas where connectivity challenges could delay the movement of results.
It must also maintain proper procedures for handling signed physical result forms, verifying transmitted figures and documenting any discrepancies.
The retention of the livestreaming requirement adds another operational responsibility. The commission must establish an effective mechanism through which the public can follow results announcements at polling stations.
Political parties, candidates and accredited observers will also expect access to reliable information throughout the tallying process.
The September court judgment provides additional guidance on how the IEBC should conduct national verification. In particular, the process must involve the commission collectively rather than concentrating the responsibility in the chairperson alone.
The availability of underlying records to commissioners, candidates’ agents and observers will be important in strengthening confidence in the final declaration.
What the Developments Mean for Kenyan Voters
For voters, the controversy highlights the importance of transparency throughout the electoral process rather than focusing exclusively on the announcement of a presidential winner.
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Polling station declarations, signed result forms, electronic transmission, physical delivery and national tallying must work together to produce an accurate and verifiable electoral record.
The decision to delete Clause 22 also demonstrates how judicial interpretation can influence parliamentary consideration of electoral reforms.
As the Elections (Amendment) (No. 2) Bill, 2024, returns to the Senate, attention will remain on whether the two Houses can agree on the final wording of the proposed legislation.
The immediate position is that the National Assembly has retained Section 39 in its existing form, including the IEBC’s livestreaming provision. The proposed two-hour transmission deadline and replacement polling station finality wording have not become new statutory requirements through the deleted clause.
