Kenya General Elections Series: Election to the Office of the President

After the first presidential debate ever in Kenya, the battle lines have been drawn and others reinforced. Officially Kenya has 8 presidential candidates after the presentation of their papers to the Independent Electoral and Boundaries Commission of Kenya (IEBC). Now focus turns to the procedure of the election to the office of the President of the Republic of Kenya. What are the details of this procedure?

Article 138 of the Constitution is conveniently preceded by the heading ‘procedure at presidential election’. This article details the procedure from presentation of papers to the polling day. It provides clarity and predictability to the business of electing Kenya’s commander-in-chief.

Clause 1 of article 138 states that where one candidate is nominated as a presidential candidate, then he/she stands elected. This means that Kenyans need not go to the polls because what would be the point in that? However as mentioned earlier, there are 8 presidential candidates which means Kenyans cannot avoid going to the polls in accordance with article 138(2). This clause stipulates that if there are two or more nominated candidates, an election must be held in each constituency.

The date and time of these elections are also set by the constitution. They are supposed to be held on the 2nd Tuesday, in August of every 5th year. Needless to point out (but I choose to), these elections do not fit into this constitutional specification. This was a result of a court ruling that stipulated that elections must be held within 60 days after the end of 10th parliament’s term. IEBC picked out March 4th for the polling date. Hopefully this legal anomaly will be corrected before the next general elections.

Polling is via secret ballot and only registered voters are allowed to participate. The IEBC is the only body legally mandated to count, tally and officially announce the results of elections. In the case of the presidential elections, they have up to 7 days after the conclusion of polling to announce the result. In other words, within 7 days after the polling date, IEBC must announced a winner and provide a written notification to the Chief Justice and the incumbent President to that effect.

But how does one win? Clause 4 of the article provides a two pronged test. The first is whether the candidates garners more than half (50%) of the total votes cast. The other is whether he/she gets 25% or more of all the votes cast in at least 24 of the 47 counties in Kenya.

If none of the candidates manage to achieve the foregoing, then within 30 days a run off must be executed. The race would be between the person(s) who received the greatest number of votes and the one(s) who received the second greatest number of votes. In the highly improbable but possible event that two or more candidates receive the exact same number of votes which are calculated to be the greatest number, then the one(s) with a figure that is lower are barred from running even though they are technically second. The candidate with a simple majority at the run off wins the election.

Opinion polls have often projected that none of the candidates can win this election in the first round. If they are accurate and that is what happens after the 4th of March, it means Kenyans would be headed to another presidential election latest by April the 3rd. This means the incumbent would hold office until after that date in April.

After the presidential election, those aggrieved by the results have 7 days to file a petition in the Supreme Court (article 140 (1)). The court has 14 days to render a decision and should it decide to invalidate the results, fresh elections would be held within 60 days. Note that there is no appeal to this decision.

There are certain circumstances in which the presidential election can be cancelled. These are: if no one is nominated to run for this office, if any candidate or his/her running mate dies on or before the March 4th or if a President-elect dies before assuming office. In the above cases, fresh elections are to be held within 60 days.

Where the presidential election is concluded and there is no petition or if the petition is dismissed there is the issue of swearing in. The 2007 presidential swearing in ceremony left a bad taste in many Kenyans’ mouths. This time round, it must be done in public and the oath or affirmation of office administered by the Chief Justice or his deputy in his absence.

In conclusion, I implore Kenyans to the peace as we enter our 50th year of independence. Vote wisely as you do so peacefully.

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