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"content": "[The Temporary Speaker (Sen. Abdul Haji) left the Chair]"
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"content": "[The Temporary Speaker (Sen. Wakili Sigei) in the Chair]"
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"speaker_name": "Sen. Cheruiyot",
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"content": "Mr. Temporary Speaker, Sir, Clause 5 is amending Section 8A of the principle Act, which is a deletion of subsection (3) and provides for audit of the Register of Voters by a professional reputable firm for purposes of first general election after the commencement of this Act. We have argued about the validity of our Register of Voters. I do not know if other countries have this. I know for a fact that you have come from observing elections in some land very far away from this place. I do not know if you had any conversations about audit of the registered list of voters in your conversations or exit report. Therefore, because we do not trust our independent institutions or for some reason want to confirm, we have provided that a professional audit firm upon the passage of this Act to conduct an audit of the Register of Voters. Sen. Osotsi, that is why our elections are extremely expensive. In other countries that trust their independent institution, this is work that can be left to IEBC to do on their own and clean it up. However, trust is an expensive affair. I had explained why many of these issues stem from mistrust of the electoral process and the players in between. You can imagine how much it will cost the IEBC to hire a firm to look into the list of registered voters, who are about 20 million, if I am not wrong. Kenyan taxpayers will pay quite a tidy amount for that provision. However, let it be as it may. Clauses 6, 7, 8, 9, 10, 11 and 12 and 13 of the Bill is an amendment of Sections 14, 16, 17, 19, 22, 23, 24 and 25 by deleting the words “nomination” and substituting it with “registration of candidates” so as to differentiate the role of IEBC and those of the Registrar of Political Parties. Remember, there is confusion in how the Act is presently drafted. Additionally, Clauses 7 and 9 delete the submission of party lists with respect to parliamentary and county assembly nominations to the IEBC by political parties. Further, Clause 10 of the Bill proposes to delete Section 22 and set out education requirements for a Member of Parliament or County Assembly. These requirements, remember, have been declared unconstitutional in Wambui"
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"content": "and 10 others versus the Speaker of the National Assembly in Constitutional Petition No.28 of 2021"
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"speaker_name": "Sen. Cheruiyot",
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"content": ". Eventually, we will remove those things that were provided for education qualifications. We are representing people, and, therefore, many of the people you represent, Sen. (Dr.) Khalwale, there are no medical doctors like you. They have voted for you because The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"id": 1494687,
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"type": "speech",
"speaker_name": "Sen. Cheruiyot",
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"content": "they feel that you can represent them. It was the feeling of Kenyans, and the courts have finally agreed with them, so we do not need to push this point further. With regard to Members of a County Assembly (MCA) and Members of Parliament, Kenyans want to elect their own. The Bible says to each their own. If they feel that they want to elect a fellow who perhaps does not meet what we would know as at least a basic standard of a competent person to legislate and represent them, as I have said, we are only humble servants of the people. Therefore, we will allow them to have it as they wish. Clause 14 of the Bill proposes to amend Section 27 by inserting a new subsection to provide that “a coalition party shall within 14 days of registration submit to IEBC a copy of its nomination rules certified by the Registrar of Political Parties.” Remember this issue of the coalition party. We argued here on the Floor of this House about coalition political parties and the same. I am sure after the election, Sen. Omogeni has since changed his views as opposed to what he had then because of their challenges in trying to run as a coalition political party. You remember the debate that was here. However, at that time, you are like me. What you accuse me of being nowadays is what you were at that particular time. Clause 15 of the Bill proposes to amend Section 31, which provides for the nomination of political party candidates, by deleting subsection 2(b),(c),(e) and (f), which provides that – “The IEBC shall, upon the request of a political party, conduct and supervise nomination of candidates by the political party for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution.” It is just our feeling that there can be a time when political parties will have matured to the level of allowing the IEBC to conduct nominations for them. Who knows? If we were able to agree at the political party's level, we could actually end up making it mandatory for all our political parties to do this. Nonetheless, it is a decision of the political party, a right that you may not want to take away from them. However, we wanted to provide it in law so that if a political party feels that they do not have the internal capacity to conduct a nomination process, then they let it go to IEBC. Of course, I know it will be a costly affair. I know this because I have run for the nomination and participated in the management of the nomination of a political party, the United Democratic Alliance (UDA), that conducted nomination exercises in about 40 counties. This is an expensive affair. Part B is you submit to the IEBC the names of the person contesting the party primaries and the date of the party primaries for publication of this information in the Gazette Notice. You require also that the Parliament shall appropriate monies for the effective implementation of the section. What that means basically is that the Kenyan public will fund this exercise because they belong to these political parties. The only challenge is that we have provided the resources, but we have not made it mandatory for the political party to carry out its primary using the IEBC. So, the funds will be there, but the political party will decide whether to use IEBC or not. The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"speaker_name": "Sen. Cheruiyot",
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"content": "I almost laugh when I remember a certain political party that conducted its nomination electronically. There was a big fight about “password”. They questioned the use of “password”? I am sure Sen. Ogola knows a thing or two about that “password” conversation that ensued in certain regions. IEBC has that mandate provided for by law, but at the request of the political parties. Clause 16 proposes to amend Section 32, which provides for the approval of a symbol for independent candidates, by deleting the words “nomination day” and “nomination” and substituting them with the words the date of registration and registration, respectively. This is just about independent candidates making sure that the process upon which they submit is complete. Remember, when independent candidates want to submit a symbol that they are going to use in the election, it is quite a long process. Clause 17 of the Bill proposes to amend Section 33, which provides for the nomination of independent candidates. These are a few clerical things to ensure that we clean that up. I do not intend to spend a lot of time on it. Clause 18 proposes to amend the Act by inserting new Section 33(a) to provide for publication in the Gazette of party candidates and independent candidates as registered to contest in a by-election. I said some of these provisions are rather too obvious, but we still must do the same. Clause 19 of the Bill proposes to amend Section 34, which provides for the nomination of party-list members, by inserting new Sections 8(a) and 8(b) to provide that – “a person can only be nominated as a Member of a County Assembly. If such a person is a registered voter in a ward within a county, the person is to be nominated, and the need to ensure equitable representation from all wards comprising the respective county as regards nomination.” This provides clarity, which is part of what Sen. Crystal Asige was trying to do a few weeks ago by ensuring that all Persons with Disabilities (PWDs) and special interest groups are nominated. Furthermore, there is a practice by political parties, including my political party, of imposing people who are not residents of a particular county to form part of the members of a county assembly of that county. I find this to be completely unfair to the residents of that particular county. Therefore, I appreciate this new provision in law. So, it is now abundantly clear that you can only nominate members of the county assembly from registered voters of that particular county. This takes away powers from the big boys of our political parties, but I feel it is a good provision. I know stories and we have had petitions, including Petitions brought to this House, where the only time a certain MCA was ever seen in a county assembly is the day when they went to take the oath of office. In fact, on the day of the swearing-in, they were seen in certain towns asking for directions to the county assembly because they did not know where the county assembly of that particular county was yet, they were members of a county assembly. I want to urge members to support this so that political parties can only nominate voters from that particular county. The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"speaker_name": "Sen. Cheruiyot",
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"content": "Clause 20 of the Bill proposes to amend the Act by inserting new Section 38(a) to provide for the designation of polling stations by IEBC and publishing them in the Gazette at least three months before the date of any election. We have argued before about the creation of polling stations. Sen. Eddy has a thing or two to say about this. I read some of the things he said about the IEBC elsewhere. We are making it a provision in the law that three months before the election, IEBC must publish the list of all the polling stations by Gazette Notice. Kenyans will be able to check so that we do not have issues arising like the creation of certain polling stations just like that fellow, Jose Carmago. Clause 22 of the Bill proposes to repeal and replace Section 39 which provides for the determination and declaration of results and substitute it with a new section. The new section proposes that results at the polling station shall be final and the Presidential election shall be tallied, announced and declared and electronically transmitted before all other elected positions. Further, the new section has omitted provisions providing for- (IE) where there is a discrepancy between electronically transmitted and physically delivered results, the Commission shall verify the results which is an accurate record of results tallied, verified and declared at the respective polling station shall prevail. (IF) Any failure to transmit or publish election results in an electronic format shall not invalidate the results as announced and declared by the respective presiding and returning officers at the polling station and constituency tallying center respectively; because this is technology, things happen. Part C is a requirement for Independent Electoral and Boundaries Commission (IEBC) to establish a mechanism for live streaming of results as announced at the polling station to facilitate public information. This is part of the public trust building mechanism. IEBC has part of its system that would allow somebody to visibly check and confirm results after the declaration of the Presidential election results at Kapmaso Primary School in Kabianga Ward where I vote. Unless you have somebody, who was at Kapmaso at the time of declaration of that result, or at Bomas of Kenya, sometimes it is difficult to verify. Therefore, the easier thing to do is to make this information public so that I can easily check and confirm. If they announced that candidate X secured 400 votes, that is what is reflected in the IEBC portal. Clause 23 of the Bill proposes to amend Section 44 which provides for procuring technology. It proposes that the Commission shall ensure that the intellectual property to the technology is vested in the Commission. Sen. Oketch Gicheru should know why this forms part of that conversation. A supplier of the technology to be used shall not be found guilty of violating any procurement law or committed any crime anywhere in the world. Additionally, this is about open the server conversation. In 2017, the conversation was that the servers were asleep somewhere in France. This is a part of addressing and providing clarity to that. Clause 24 of the Bill proposes to amend Section 44A which provides for the complementary mechanism for identification of voters by inserting the words ‘transmission of election results and mandating IEBC to make regulations for better carrying into effect provisions of Section 44A. This is part of what I had mentioned earlier. The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"type": "speech",
"speaker_name": "Sen. Cheruiyot",
"speaker_title": "The Senate Majority Leader",
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"content": "Clause 25 of the Bill deletes Section 45 which provides for the conditions under which a Member of Parliament (MP) may be recalled. These provisions were declared unconstitutional in the Katiba Institute and another versus the Constitution Attorney General (AG) in the constitutional Petition No.209. Clause 26 proposes to delete the provisions of Section 46(1)(b) that requires the petition to recall a MP must be signed by a petitioner who was registered to vote in the election in respect of which the recall is sought and that the petition must be accompanied by an order of the High Court. These provisions were also declared unconstitutional. Clause 28 proposes to repeal Section 74 of the Act which provides for the settlement of certain electoral disputes by the IEBC since the mandate is now a function of Political Parties Disputes Tribunal (PPDT) as provided in the Political Parties Act of 2011, just to provide clarity. Clause 29 of the Bill proposes to amend Section 75 which provides for the county election disputes by deleting the requirements that appeals to the High Court shall be on matters of law only and inserting New Section 5 to provide that the decision of the High Court on appeal on the validity of the election of a Member of County Assembly (MCA) shall be final. Clause 30 proposes to amend Section 82 of the Act which provides for the scrutiny of votes by providing that a court may extend a scrutiny of votes beyond the polling station or areas mentioned in the pleadings. This is a rather obvious provision but those who practice law in our courts like you, know that the limitation of many election petitions; where perhaps the given that election petitions are time-bound and sometimes a lawyer either forgets to file-in many of the contested election results, later on in the court process they are denied the opportunity to provide for scrutiny even when it becomes rather too obvious that an opening of a particular voting station will help the court in making the determination. Clause 32 of the Bill provides to amend Section 85A which provides for appeals to the Court of Appeal in respect to Members of the National Assembly, Senate or the office of the county governor by deleting the requirements that appeal shall be on matters of law only and inserting a new Subsection 5 to provide that the decision of the Court of Appeal shall be final. I am sure Senior Counsel Sen. Omogeni- who shall be seconding this and was part of the National Dialogue Committee (NADCO) process shall expound more on it. Clause 33 of the Bill proposes to insert new section 87A, 87B and 87C to provide for the appointment by Parliament of an independent firm to carry out an evaluation of the electoral process after a general election. The evaluation shall include the review of the legal framework, processes and costs associated with the electoral process and propose new provisions require preparation of a report and submission to Parliament within 90 days of the appointment of the independent firm. Just to ensure that at the end of every election, we provide a firm to audit the process in its entirety and lead Parliament in passing legislation such as this. Sen. Olekina, you are not in the House but I mentioned earlier that mistrust is what we are trying to cure in most of these proposals that are here. Otherwise, in other parts of the world, many of the proposals that are here will appear like obvious things. The electronic version of the Senate Hansard Report is for information purposes only.A certified version of this Report can be obtained from the Director, Hansard and Audio Services,Senate."
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"speaker_name": "Sen. Cheruiyot",
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"content": "Therefore, to clean up our processes, the Bill is proposing that after every electoral cycle, IEBC procures the services of an independent audit firm to audit the entire process from the start; the preparation of the election, election day to declaration of results and also what it costs the taxpayers. They will finally then submit a report to Parliament so that Parliament can make independent decisions of how to further clean up our electoral processes or review certain costs or decisions that are provided for in law that make it extremely expensive to run our elections. Remember, our elections costs are legendary and we have mentioned the reason behind it. Therefore, as I conclude, I wish to state that this is a very important Bill and therefore urge Hon. Senators to support it. This is about what brings you to this House and the people that you represent. Elections are extremely important because they are the tools which form the chance for the citizen to speak and exercise Article 1 of our Constitution directly. We are duty-bound as Parliament to provide and make it possible for them to exercise that constitutional provision with a lot of clarity. Sen. Omogeni was part of the NADCO-2 team at Bomas of Kenya. I know Sen. Olekina was part of the first one, and therefore has a good understanding of this Bill as well. Therefore, I want to grant him the opportunity, to second this Bill. I thank you."
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