A joint committee of the Senate that had been tasked to carry out public hearings on the Bill failed to agree on whether the electoral agency should use manual backup or not, leading to the vote. Jubilee members in the Committee carried the day with 10 votes to agree with the National Assembly against six votes by the Cord counterparts. In their report, there was agreement that "Section 44A may be unnecessary because it is catered for under section 44 of the Elections Act, 2011, and the regulations should be anchored in section 44 of the Elections Act, 2011." However, the joint committee — Legal Affairs and Human Rights and Information and Technology — co-chaired by Busia Senator Amos Wako and his Nyeri counterpart Mutahi Kagwe could not reach a consensus on rejecting the Bill.
When the clause was put to a vote, the Jubilee side carried the day and these divisions were carried forward to the Chamber during Thursday afternoon special sitting. Ten Jubilee senators voted to agree with the amendments as passed by the National Assembly on December 22 last year, while six Cord senators wrote a dissenting report opposing the amendments.
The Jubilee senators who prevailed when a vote was put per clause and concurred with the National Assembly include: Kiraitu Murungi (Meru), Kipchumba Murkomen (Elgeyo Marakwet), Stephen Sang (Nandi), Aaron Cheruyiot (Kericho), Isaac Melly (Uasin Gishu), Mutahi Kagwe (Nyeri), Kembi Gitura (Murang'a), Joy Gwendo (Nominated), Ben Njoroge (Nominated) and Fatuma Dullo (Nominated). Cord senators Amos Wako (Busia), Hassan Omar (Mombasa), Mutula Kilonzo JR (Makueni), Boy Juma Boy (Kwale), Judith Sijeny (Nominated) and Daisy Kanainza (Nominated) dissented and recommended re-establishment of a joint select committee to unlock the stalemate. “All matters that fundamentally attempt to alter the agreements of the political settlement must follow a similar procedure for review.
The arbitrary review as contained in the Election Laws (Amendment) (No. 3) Bill, 2015 continues to tense the political environment and creates unnecessary suspicion,” the six senators said in their report. “The Senate must therefore vote against this Bill and propose a motion that establishes a Joint Select Committee of Parliament for the period leading to the general elections to resolve and settle all matters of contention that might arise from time to time, particularly with reference to The Election Laws (Amendment) Act, 2016,” they added.
The six senators also called for total rejection of all amendments to section 44 and its sub-clauses, saying the negotiated Bill that was passed last year provided for a mandatory electronic voting system. “Electronic voting through biometric voter registration, electronic voter identification and electronic transmission of results. Section 44 (5) of the said Act provides for a consultative process for the development of the regulations," they said.
They added, “The provisions of Section 44 (5) make adequate provisions for a back-up system as 44 (5) (i) provide for development, publication and implementation of a disaster recovery and operations continuity plan.”
According to the Star,the senators also opposed the exclusion of the senate in the next review of electoral boundaries, calling for deletion of clause 32 of the Bill. “The unconstitutional passage of the said Bill in the National Assembly requires a tough and decisive statement from the Upper House to right the wrong. The Senate must therefore vote out the Bill for want of constitutionality and refer any review to the JSPC as proposed in Recommendation,” they said.
On the use of technology backup system, the committee noted that there was need to clarify to the public that the technology that is supported by law is Biometric Voter Registration, Electronic Voter Identification Devices and Electronic Transmission of Results. The report notes that there was consensus that the use of technology in elections should be used in the August election and that a backup mechanism would only be triggered where there was a failure in technology in exceptional cases.
They also observed that there was need to define the type of backup system that would be used. “There is need to clearly define the circumstances which may trigger the use of a backup mechanisms and establishment of a multi-layered system whereby the primary electoral system should be electronic and the back-up system should also be electronic and only in exceptional circumstances could the manual register of the verified electronic copy be used,” the report says.
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