Kenya: Electoral system

Updated July 2022

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Legal and institutional framework


Legal basis
  • Constitution of Kenya 2011; amended repeatedly
  • Elections Act No. 24 of 2011
  • The Elections Campaign Financing Act 2013
  • The Election Offences Act 37 of 2016
  • The Independent Electoral and Boundaries Commission Act No. 9 of 2011
  • Political Parties Act 11 of 2011
  • Publication of Electoral Opinion Polls No. 39 of 2012
Electoral system National Assembly: 290 members, each elected by single member constituencies, forty-seven women elected from forty-seven constituencies; twelve members nominated by represented political parties in proportion to their members to represent the youth, persons with disabilities and workers and the Speaker, who is an ex-officio member.[1]
President: Directly elected by universal adult suffrage, winning candidate must receive more than half the votes cast and at least twenty-five percent of votes cast in more than half the counties. If no majority then run-off between two candidates that receive most votes must be held within 30 days. [2]
Electoral management bodies (EMBs) The Independent Electoral and Boundaries Commission is responsible for conducting or supervising referenda and elections to any elective body or office.[3]
The Independent Electoral and Boundaries Commission is also responsible for the delimitation of constituencies and wards as well as the settlement of electoral disputes. Electoral disputes subsequent to declaration of results determined by High Court nearest to or within the county.[4]
Independence of EMBs IIEC: Seven (7) members, including the chairperson, recruited by diverse selection panel 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: Organisations apply to the Registrar of Political Parties, which is designated as a State Office, for registration[6]
Both political parties and independent candidates may run for office given they satisfy the conditions laid out in Articles 99(1)(c)(i) or (ii) or Article 193(1)(c)(ii), depending on the election.[7]
Party financing: Political Parties Fund consisting of (i) funds appropriated by Parliament and (ii) contributions and donations from other lawful sources. Funds to be distributed to political parties that (i) secure at least five percent of the vote in the immediately prior general elections and (ii) political parties where more than two-thirds of office bearers are of the same gender. No foreign funding, however a foreign agency may provide technical assistance. Parties to disclose to the Registrar details of funding received or resources obtained.[8]
Code of conduct governing candidates and political parties prescribed by the Independent Electoral and Boundaries Commission. Code of Conduct is contained in the Second Schedule of the Elections Act.[9]

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Election management


Election period and dates National Assembly and presidential elections held concurrently on the second Tuesday of the month of August every five years concurrently years; [14]
Presidential and National Assembly are initialted by the Commission in a notice published in the Gazette at least sixty days before the date of the general election. Gazette to include nomination day for election and the day(s) on which the poll shall be held.[15]
Delimitation of constituencies Boundaries Commission to review constituencies between every eight to twelve years but not twelve months before an election. Boundaries to ensure roughly equal residents in each constituency and take into account geographical features and urban centres, community interests, historical, economic and cultural ties as well as means of communication.[16]
Voter registration and voters' rolls Continuous voter registration and regular revision of voters' roll undertaken by the Commission[17]
Citizen qualifies to be voter if they are (i) an adult, (ii) of sound mind (iii) has not been convicted of an election offence in the prior five years[18]
It is the Commission's duty to compile and maintain the voters' roll. Voters' rolls must, at all times, be opened for inspection to members of the public for rectification; Commission to open voters roll for inspection for at least thirty days.[19]
Civic and voter education The Commission is tasked with the promotion of voter education as well as the curriculum. The Commission is empowered to partner with other organisations in the provision of such voter education[20]
Candidate nomination National Assembly: Political parties to submit its candidates to the Commission at least ninety days before the date of the general election. Forty-five days for party lists. Party cannot change candidate nominated after nomination has been received by Commission. Party lists to take into account reservation policy in the Constitution. [21]
Presidential: Candidates must be qualify to stand as a member of Parliament, must be a citizen by birth, be nominated by no fewer than two thousand voters from each of a majority of the counties. Commission to publish Gazette at least sixty days before election date, Gazette to specify nomination day for presidential election and day in which poll will be held.[22]
Election observation The Commission is responsible for the facilitation and accreditation of election observers. It is the Commission's responsibility to provide a code of conduct for observers. [23]
Election campaigns Sixty (60) day campaign period for both Presidential and National Assembly.[24]
Every citizen has a right to campaign for a political party of their choosing. The Commission is empowered to set limits on total campaign contributions as well as spending limits. Candidates and parties not allowed to receive
Political parties are not allowed to use state resources for partisan political campaigning[25]
The Election Campaign Finance Act regulates campaign finance, the Commission is empowered to make rules regulating campaign finance[26]
Conflict prevention and management There shall be a Political Parties disputes Tribunal that shall resolve disputes between within and between political parties and candidates, appeals to superior courts permitted. Peace committees, which may be established by the Commission, are empowered to mediate political disputes[27]
Parliament is empowered to enact legislation to establish mechanisms for settling electoral disputes. Apart from presidential electoral disputes, electoral disputes shall be filed within twenty-eight days after the declaration of the election results. The Commission is also empowered to settle electoral disputes resulting from election results.[28]
Election staff and logistics The IIEC is given a free hand in recruiting staff and polling staff[29]
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[30]
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[31]
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[32]
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[33]
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[34]
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[35]
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[36]
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[37]
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[38]
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, Article 97.
[2] Constitution, Article 138(1-7).
[3] Constitution, Articles 88(4).
[4] Constitution, Articles 88(4)(e); Elections Act 75(1).
[5] Independent Electoral and Boundaries Commission Act, first schedule 3(1)(4).
[6] Political Parties Act 2011 5(1)(2)(3).
[7] Constitution, Article 85.
[8] Political Parties Act 2011 25(1)(2), 27 (1)(c)(2)(4)
[9] Elections Act 110, Second Schedule
[14] Constitution, Articles 136(1)(2)(a). If the office of the President becomes vacant due to death or resignation, the Deputy President assumes the office of the Presidency for the remainder of the term (Article 146(1)(2)(a)).
[15] Elections Act 14(1)(a)(2)(a), 16(1)(a)(2)(a)
[16] Constitution, Articles 89(2).
[17] Independent Electoral and Boundaries Commission Act, 4(a)(b), Electoral Act 4(2).
[18] Constitution 83(1). A citizen that qualifies for registration as a voter is only permitted to vote at only one registration centre (Constitution Article 83(2)).
[19] Elections Act 4(2), 6(1)(2), Independent Electoral and Boundaries Commission Act 4(a)(b).
[20] Constitution, Article 88(4)(g), Elections 40(1)(2).
[21] Elections Act 13(1)(2) Constitution 90, 97(1), Elections Act, 35.
[22] Elections Act 14. Constitution 137(1); If only one candidate is nominated that person is declared elected (Constitution, Article 138(1)).
[23] Elections Act 42(a), Independent Electoral and Boundaries Commission Act 4(h), 109(1)(y); Constitution 88(4)(h)
[24] Elections Act 14(1)(a), 16(1)(a).
[25] Election Campaign Financing Act 14(1)(2), Political Parties Act, First Schedule 7(i)
[26] Election Campaign Financing Act 12(1)(a)(3), 18(1), 23(1)(d).
[27] Political Parties Act, 39(1) 40(2), Elections Act, Second Schedule 17(1)(3)(b)
[28] Constitution 87(1)(2), Elections Act 109(1)(x)
[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 2010

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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