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The biggest challenge that has historically faced presidential elections in Kenya is correctly identified as the “deficit of trust” that has made losers in past races to reject outcomes after questioning the credibility and transparency of the tallying.

Since the return of multiparty politics, voting has never been a problem. Indeed, all goes well at the voting and counting stages, which are carried out at polling stations. Challenges, ironically, emerge during tallying, first at the constituency and later at the national levels.

This is what prompted the Court of Appeal, in what came to be known as the “Maina Kiai Case”, to order that presidential election results as declared at polling stations are final. The ill that the ruling was seeking to cure is the deficit of trust that emerges at the national tallying centre. This, ironically, is triggered by politicians pretending to be agents for parties and candidates and who then orchestrate violence and chaos when the results fail to favour their candidates.

In every subsequent election, the now moribund electoral agency IEBC makes expensive improvements in the results transmission system to increase trust in the entire process in line with the Kriegler report of 2008 and various Supreme Court rulings hinging on the conduct of presidential elections.

In the last election, for example, the IEBC introduced electronic transmission of results from polling stations and posted the PDFs on its portal in real time. Despite this, Azimio la Umoja went to court to challenge the results. Its lawyers argued, for instance, that the results left the stations as photographic images (jpegs) but arrived in the portal as documents (PDFs). They sought to know whether in the process, the digits had been tampered with. However, they were taken to task by Justice Smoking Wanjala, who asked them to check if there was any discrepancy between the digital results and the forms filled out at polling stations.

One other problem that confronts the IEBC is the slow pace at which results are released at the national tallying centre. This becomes an issue especially when Kenyans hear that the US counted over 80 million votes in less than a day during the recent presidential election. That number pales in comparison with what happened in India in June when it counted over 640 million votes in a day.

In Kenya, vote tallying takes well over a week, an improvement from two weeks in past elections. Such delays create the impression that there is tampering of votes, hence the need to make transmission faster, including through livestreaming of results as they are reported at polling stations.

Now the Senate has the audacity to consider passing a bill that will stop the IEBC from live transmission, yet this is at the very core of the credibility of presidential elections. This can only mean that the Kenya Kwanza coalition, which is pushing this suspicious amendment, is afraid that its presidential candidate will fare badly in 2027. Could that be why they are looking for ways to interfere with the results? This, in the final analysis, risks eroding all the gains that Kenya has made through improvements of its yet-imperfect system and the many court cases that have guided the conduct of presidential polls. In effect, it risks undermining the very essence of Kenya’s democracy.

In case senators have too much time on their hands and do not know what to do with it as they wait for their Christmas recess, it would be advisable for them to consider unlocking the stalemate engineered by the Wiper party, and which has ensured that Kenya has been without a functional electoral commission for two years now. This, in my view, is not just a pressing problem but an urgent one that ought to be resolved as swiftly as the impeachment of former Deputy President Rigathi Gachagua. Senators should feel compelled to work deep into the night and make Kenya Gazette notices fly like night owls to ensure that a functional electoral commission is in place sooner rather than later.

Their worrying preoccupation with rolling back the hands of time to imperil democracy ought to be called out because such misadventures have the potential to put conscientious citizens at loggerheads with the police, and we know what that means. Senators must, therefore, stop playing with fire. Unless their endgame is to ensure Kenya burns.

— The writer is the Editor-in-Chief of the Nairobi Law Monthly and Nairobi Business Monthly; [email protected]