Kenya: Electoral system

Updated July 2010

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Legal and institutional framework

Legal basis
  • Constitution of Kenya 1963; amended repeatedly
  • National Assembly and Presidential Elections Act (Cap 7)
  • Local Government Act (Cap 265)
  • Election Offences Act (Cap 66)
  • Political Parties Act 2007
  • Kenya Broadcasting Act (Cap 221)
  • Media Act 2007
Electoral system National Assembly: Between 188 and 210 members are elected by universal suffrage from single member constituencies by plurality; twelve members nominated by the President, to represent special interests, in proportion to the elected seats parties hold, taking into account gender equality[1]
President: Directly elected by universal adult suffrage by a plurality[2]
Electoral management bodies (EMBs) The Interim Independent Electoral Commission (IIEC) is responsible for reform of the electoral process and the management of elections to institutionalize free and fair elections[3]
The Interim Independent Boundaries Review Commission (IIBRC) is responsible for making recommendations to Parliament on the delimitation of constituencies and local authority electoral units[4]
Independence of EMBs IIEC and IIBRC: Up to 9 members each; recruited competitively by a Parliamentary select committee, approved by the National Assembly and appointed by the President in consultation with the Prime Minister[5]
Political parties Party registration undertaken by the Registrar of Political Parties appointed by IIEC, only registered parties may nominate candidates for National Assembly elections[7]
Party financing: Parties whose national registered office bearers are not at least a third of men and women each are not eligible for public funding; 15% allocated equally to all registered parties, 80% proportionate to the number of votes received at the last general election and 5% to administration. Private funding from foreign sources prohibited; contributions of more than five million shillings a year a donor prohibited; no limits on campaign spending; private funding published annually. Annual auditing by Auditor General of accounts, made public[8]
Code of conduct governing campaigning is a schedule in the electoral code[9]

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Election management

Election period and dates National Assembly and presidential elections held concurrently every 5 years; the President may dissolve Parliament at any time; the Parliament stands dissolved if a motion of no confidence is passed by the National Assembly but not heeded by the President or government[14]
Elections for the National Assembly are called by writs issued by the Speaker of the National Assembly specifying nomination and polling dates; presidential elections are called by notices by the IIEC; both are published in the Gazette[15]
Delimitation of constituencies Review and delimitation of constituencies and electoral areas is undertaken by the IIBRC according to criteria that tempers the need for equality of votes with population density and trends, communication, terrain and community interests; no period for review laid down[16]
Voter registration and voters' rolls Voter registration is undertaken by the IIEC, registration is voluntary and continuous[17]
Citizens resident in a constituency, 18 or older, must present a national identity card or a Kenyan passport; voters registered are issued with a voter's card[18]
Voters' rolls must periodically be opened for inspection and rectification; voters' rolls closed between the announcement of the election and election day[19]
Civic and voter education The IIEC is tasked with the promotion of voter education and the culture of democracy[20]
Candidate nomination National Assembly: Candidates must be citizens 21 years or older, registered voters and proficient in Swahili and English, nominated by a party and must pay a nomination fee of 5000 shillings[21]
Presidential: Candidates must be qualify for National Assembly, be 35 years or older, endorsed by 1000 registered voters and must pay a nomination fee of 100 000 shillings[22]
Election observation The IIEC is responsible for accreditation non partisan people and organisations as national and international observers, issue them with binding guidelines and must require a written report of them within 6 months of the announcement of the election[23]
Election campaigns Presidential elections 45 day campaign period, National Assembly 35 days; campaigning on election day is prohibited[21]
Holders of political gatherings are required to provide written notice to the relevant local authorities[22]
Use of public resources and abuse of incumbency for campaigning is a punishable offence[23]
No limits are set on amounts candidates may spend on campaigning
No Code of Conduct governs campaigning
Conflict prevention and management The Registrar of Political Parties arbitrates in disputes between members of a party and between parties that are affiliated to other parties; the Political Parties Disputes Tribunal rules on disputes between the members of a political party and disputes between political parties that form part of a coalition[24]
The IIEC settles of minor electoral disputes; disputes about the validity of presidential National Assembly are ruled on by the High Court[25]
Election staff and logistics The IIEC is given a free hand in recruiting staff and polling staff[26]
The IIEC uses schools free of charge as polling stations; it must make special provisions for voting by nomads and by the hospitalised, frail, disabled, pregnant and aged[27]
In concurrent elections ballot boxes for president and parliament election must be of different colours, have different serial numbers and be placed as far apart as possible from one another[28]
Secrecy of the ballot Polling booths must screen voters from view while thet mark their ballots; illiterate or incapacitated voters may choose anyone over 18 to assist them in marking their ballots, but otherwise no one is permitted to enter a booth while a voter is voting[29]
Voting and counting process In presence of candidates, their agents and accredited observers and journalists the presiding officer demonstrates ballot boxes are empty, seals them (candidates and agents may place their own seals on them) and places them in constant public view; security forces within the precinct are under authority of the presiding officer[30]
Voters vote at the polling station where they are registered; a voter presents a voters card and identification; officials check the voter's name on the voters' roll, stamp and issue a ballot paper, cross the voter's name off the roll and stamp the voter's card; in a booth the voter marks the ballot next to the candidate of choice, folds the ballot to hide the choice made, leaves and places it in a ballot box; a finger is marked with indelible ink[31]
Counting takes place at the polling station immediately after polling and is observed by accredited observers and media representatives, police officers, candidates and candidate agents[32]
Announcement of results The presiding officer completes the results return, the results are publicly announced, a copy of the results is posted outside the polling station and copies distributed to the agents and candidates and candidates and agents are requested to sign the results return; ballot papers are packaged and sealed by the presiding officer, agents are invited to place their seals and the packages and all other documents are placed in a ballot box which is then sealed and delivered to the constituency returning officer escorted by agents[33]
The returning officer, in the presence of observers, journalists, police officers, candidates and their agents, checks the arithmetic of undisputed ballots and reviews decisions made on disputed ballots and publicly announces the results for the constituency, completes a results return and issues copies to candidates and agents; ballot papers are packaged and sealed by the returning officer, agents are invited to place their seals and the packages and all other documents are placed in a ballot box which is then sealed and delivered to the IIEC escorted by agents[34]
The IIEC tallies the results; declares the winner of a presidential election by a notice in the Gazette and issues a certificate of election to the winner; confirms the results of parliamentary elections by a notice in the Gazette and issues a certificate of members elected to the Speaker of the National Assembly[35]
Electoral reform Kenya has undergone a process of intense constitutional reform, culminating in the adoption of a new Constitution

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Table notes

[1] Constitution, Articles 32, 42(2), 33. From 1997 onwards the number of constituencies has been 210. Since at least 2002 half of the nominated seats have gone to women.
[2] Constitution, Article 5(3). The candidate must also receive a minimum of 25% of the valid votes cast in at least five of the eight provinces (Article 5(3)(f)).
[3] Constitution, Articles 41, 41A.
[4] Constitution, Articles 41B, 41C.
[5] Constitution, Articles 41(1),(3), 41B(1),(2).
[7] Constitution, Article 34(d), 41(15); Political Parties Act 2007 3.
[8] Political Parties Act 2007, 24(2),(4), 30(3)-(6), 31(2), 32(1)-(4), 33, 34(1)-(3).
[9] National Assembly and Presidential Elections Act (Cap 7), Fourth Schedule.
[14] Constitution, Articles 5, 9, 59. If Parliament is dissolved both presidential and National Assembly elections must be held (Article 5(3)). Should the office of the President become vacant fresh presidential elections must be held within 90 days (Article 6(1), see Articles 5, 6, 10, 12 for details).
[15] National Assembly and Presidential Elections Act (Cap 7), 12, 13. The Presidential and Parliamentary Elections Regulations, 25A(1),(2), empower the IIEC to postponed a election if a serious breach of the peace is likely to occur or as result of natural disasters or other emergencies and set a new date that is as early as practicable. A presiding officer may extend voting hours at a polling station if it opens late, or if voting is interrupted, to compensate for time lost (National Assembly and Presidential Elections Act (Cap 7), 25(3)).
[16] Constitution, Articles 41C, 42.
[17] National Assembly and Presidential Elections Act (Cap 7), 4, 4A. The 2008 Constitutional amendment that established the IIEC also directed it to undertake a fresh registration of voters and create a new voter register (Constitution, Article 41A(d).
[18] Constitution 43(1); National Assembly and Presidential Elections Act (Cap 7), 4A(2), 15. It is an offence to register on more than one register or in more than one constituency (National Assembly and Presidential Elections Act (Cap 7), 5).
[19] National Assembly and Presidential Elections Act (Cap 7), 4(2),(3), 4A(1).
[20] Constitution, Article 41A(h).
[21] Constitution, Article 34; Presidential and Parliamentary Elections Regulations, 15(4).
[22] Constitution, Article 5(2),(3); Presidential and Parliamentary Elections Regulations, 11(3). If only one candidate is nominated that person is declared elected (Constitution, Article 5(3)(c)).
[23] Constitution, Article 41A(g); Presidential and Parliamentary Elections Regulations, 45.
[24] Political Parties Act 2007, 3(4), 6(4).
[25] Constitution, Articles 10, 41A(i), 44.
[26] National Assembly and Presidential Elections Act (Cap 7), 3.(1),(2); Presidential and Parliamentary Elections Regulations, 10.(1).
[27] Presidential and Parliamentary Elections Regulations, 7.(1), 44.
[28] Presidential and Parliamentary Elections Regulations, 22.(1).
[29] Presidential and Parliamentary Elections Regulations, 22.(2)(f), 30.(3), 31.(1).
[30] Presidential and Parliamentary Elections Regulations, 23.(1), 27.(1), (5).
[31] National Assembly and Presidential Elections Act (Cap 7), 15., 29.(1),(3),(4); Presidential and Parliamentary Elections Regulations, 30.
[32] Presidential and Parliamentary Elections Regulations, 35., 35A.(1)-(3), 36-38.
[33] Presidential and Parliamentary Elections Regulations, 35A(4),(5), 39.
[34] Presidential and Parliamentary Elections Regulations, 40.(1),(2), 40A, 41.
[35] Presidential and Parliamentary Elections Regulations, 40., 41.

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References

CONSTITUTION OF KENYA 1963 (revised edition 2009), [www] http://www.kenyalaw.org/Downloads/GreyBook/1.%20The%20Constitution%20of%20Kenya.pdf [PDF document, opens new window] (accessed 15 July 2010).
Constitution of Kenya (Amendment) Act, 2009 http://www.kenyalawreport.co.ke/Downloads/Bills/2009/The_Constitution_of_Kenya_(Amendment)_Act_2009.pdf [PDF document, opens new window] (accessed 12 July 2010).

NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT (CAP 7), [www] http://www.kenyalaw.org/Downloads/Acts/The_National_Assembly_and_Presidential_Elections_Act_Cap_7.pdf [PDF document, opens new window] (accessed 14 July 2010).

POLITICAL PARTIES ACT 2007, [www] http://www.kenyalaw.org/kenyalaw/klr_app/view_content.php?ContentHistoryID=21121&CapID=625&preamble=1 [opens new window] (accessed 20 Jul 2010).

PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS, appended on pages 34-113 of the National Assembly and Presidential Elections Act (Cap 7), [www] http://www.kenyalaw.org/Downloads/Acts/The_National_Assembly_and_Presidential_Elections_Act_Cap_7.pdf [PDF document, opens new window] (accessed 14 July 2010).

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