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Legal Alert | The Kenyan Electoral Process: What You Need to Know

 

On Tuesday, 8 August 2017, barring any last minute court challenge or major hiccup, general elections will be held in accordance with the provisions of Chapter 7 of the Constitution of Kenya. This alert will focus on the presidential election process.

The applicable laws

In Kenya the laws that govern the presidential election process are the Constitution of Kenya, 2010, the Assumption of the Office of President Act, Act 21 of 2012 (the Act) and the Elections Act, Act 24 of 2011 (Elections Act).

Decision of a presidential election candidate as president

A candidate shall be elected as President if the candidate receives:

  1. a) more than half of all the votes cast in the election (commonly referred to as the 50% plus one rule (fifty per cent of votes will be determined on the valid votes cast and will not include spoilt votes); and
  2. b) at least 25% of the votes cast in each of more than half of the country’s twenty four counties.

When a run-off takes place

If no presidential candidate satisfies the criteria in the paragraph above, then a fresh election will take place within thirty days of the previous election (the run-off).  In this election, therefore, the run off would be held prior to 7 September.

How long should the Independent Electoral and Boundaries Commission (IEBC) take to tally the votes cast in the presidential election petition?

The Elections Act requires votes to be tallied immediately upon the close of polling.  The chairperson of the IEBC is constitutionally bound to declare the result of the election and deliver a written notification of the result to the Chief Justice and the incumbent President within seven days after the presidential election (so no later than 15 August or 14 September for a run off). There has been a recent attempt to reduce the time period for declaration of the results because of the new electronic system, but the High Court has confirmed that there is no obligation on IEBC to declare the results early.

Questions as to the validity of the presidential election

Any person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the election.

The Supreme Court shall hear and make a final determination of the petition within fourteen days, and no right of appeal is available to any party.

If the Supreme Court annuls the election of the President-elect, a fresh election shall be held within sixty days after the determination.

Swearing-in process

The swearing in of the Present-elect shall be in public before the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice.

The President-elect shall be sworn in on the first Tuesday following:

  1. a) the fourteenth day after the date of the declaration of the result of the presidential election if no presidential election petition has been filed under Article 140 of the Constitution; or
  2. b) the seventh day following the date on which the court renders a decision declaring the election valid , if any petition has been filed under Article 140 of the Constitution.

The swearing in ceremony can only take place between 10 a.m. and 2 p.m.

According to section 14 of the Act, the moment the President takes over office is when he takes his oath of office, signs the certificate of inauguration and, if the incumbent is not the President-elect, the outgoing President hands over the instruments of power to the President-elect.

The President, upon the swearing in of the Deputy President-elect, shall give an inaugural speech to the nation.

Outcome if candidate gets more than 50% of the votes on 8 August

If no petition challenging the presidential election is filed, the swearing in will be on 29 August 2017.

Outcome if no candidate gets more than 50% of the votes on 8 August

Should you have any questions on this legal alert, please do not hesitate to contact Karim S. Anjarwalla.

 
Karim S. Anjarwalla
Managing Partner
ksa@africalegalnetwork.com

The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.