Livestreaming of election: Where the confusion lies

There is considerable confusion about the fate of livestreaming of election results arising from the election amendment proposals currently before Parliament. Do the proposed amendments remove the IEBC’s obligation to livestream results? What is the difference between livestreaming and electronic transmission? And what does the Constitution require, irrespective of what Parliament eventually enacts? These are three distinct questions. Much of the confusion arises from conflating two different electoral processes, misunderstanding the judicial decisions on livestreaming, and overlooking the constitutional principles that underpin both. Electronic transmission is not livestreaming Electronic transmission of election results is the process through which results recorded at a polling station are electronically captured and transmitted to the IEBC’s central system. Once votes have been counted and the results recorded in the prescribed official form, the form is photographed using the KIEMS Kit and transmitted electronically to the IEBC’s system, where results from polling stations across the country are collated. Livestreaming serves a different purpose.

It enables the public to watch, in real time, the results being transmitted from each polling station through a publicly accessible platform. Similarly, it allows citizens, political parties, candidates, journalists and election observers to observe the transmission of results as it happens and compare the results transmitted from each polling station with those subsequently collated and declared by the IEBC. The distinction is fundamental. Electronic transmission moves results through the electoral system. Livestreaming makes that transmission publicly visible in real time. The two processes reinforce each other, but neither substitutes for the other. An electoral commission may transmit results electronically without making the process publicly visible in real time. Equally, livestreaming the transmission does not, by itself, guarantee that the results have been accurately captured, collated or declared. A credible electoral system must provide for both. Why the Constitution demands transparency Articles 81 and  86 of the Constitution establish the principles against which our electoral processes must be measured. Elections must be free and fair, transparent and administered impartially, efficiently, accurately and accountably. Article 86 specifically requires that votes be counted, tabulated and results announced promptly by the presiding officer at each polling station; that results from polling stations be openly and accurately collated and promptly announced; and that appropriate mechanisms be established to eliminate electoral malpractice. These provisions were not enacted in a vacuum. Kenya’s electoral history, particularly the opacity and disputes surrounding the 2007 elections and the violence that followed, demonstrated the danger of a system in which citizens could not confidently trace how votes cast at polling stations translated into the final declared results. The Constitution sought to establish an electoral system in which the process could be independently scrutinised – including by the public - and the accuracy of the outcome verified.