Few provisions within Kenya’s electoral legal architecture attract as much scrutiny as Section 39 of the Elections Act, 2011—the statutory backbone governing how presidential and parliamentary votes are collated, verified, transmitted, and declared. When Clause 22 of the Elections (Amendment) (No. 2) Bill, 2024 proposed to repeal and replace this entire section, it ignited intense public and political debate. As civil society, legal practitioners, and observers sounded the alarm over the removal of the requirement to live-stream election results, political leaders—including President William Ruto and National Assembly Majority Leader Kimani Ichung’wah—dismissed the backlash as outright propaganda, publicly asserting that live-streaming had never been removed. An official explainer published by the National Assembly on 23rd October 2026 exposed a far more calculated narrative: parliamentary leadership sought to reframe a forced legislative retreat as a victory against public "misinformation".
To understand the controversy, one must examine the legal guarantees under the existing statutory framework sought to be repealed. Under the current Section 39, the law balances electronic speed with physical verification through clear, mandatory safeguards. Most prominently, Section 39(1G) imposes an explicit statutory obligation directly on the Independent Electoral and Boundaries Commission (IEBC): the Commission shall, to facilitate public information, establish a mechanism for the live-streaming of results as announced at polling stations. While strictly an informational tool rather than the legal basis for declaring a winner, this feed provided a centralized, real-time public window into the count for citizens and the media. Flanking this broadcast were vital statutory safety nets: Section 39(1E) provided that if electronic figures conflicted with physical returns, the accurate polling station tally would prevail, while Section 39(1F) guaranteed that network disruptions or digital transmission failures would not invalidate validly declared results.
The proposed amendment systematically stripped these pillars away. Clause 22 repealed Section 39 in its entirety and substituted a new regime that excluded Section 39(1G). The drafters did not leave this removal to inference: in the Bill’s official Memorandum of Objects and Reasons, on page 560, they explicitly acknowledged that the new section "has omitted provisions providing for... (c) the requirement for IEBC to establish a mechanism for the live-streaming of results as announced at polling stations to facilitate public information". The Memorandum similarly recorded the outright deletion of the discrepancy-resolution clause and the network-failure safeguard. In their place, the draft Bill confined the IEBC’s public digital role to uploading static result forms on an online portal, while subsection (9) shifted the burden of real-time documentation onto individual candidates, party agents, and accredited observers filming on their own devices.
When public uproar followed, House leadership labeled reports of the removal as "false and misleading". Yet this public posturing was contradicted by Parliament's own official two-page explainer. In paragraph C (5), the National Assembly conceded the truth: "Clause 22 of the Bill received from the Senate sought to delete section 39 of the Elections Act and to recast it in a different form". The explainer revealed that live-streaming survived not because it was preserved in the original Bill, but because the National Assembly was forced to backpedal. Guided by a High Court judgment in Okoiti & another v IEBC & 5 others [2026] KEHC 13916 (KLR)—where the court cautioned Parliament to respect the existing construction of Section 39 ahead of the 2027 General Election—the National Assembly reportedly voted to delete Clause 22 during its sitting on 22nd October 2026 to keep the existing Section 39 and Section 39(1G) intact. The public outcry was never "misinformation"; it was an accurate reading of a gazetted draft that deliberately eliminated the IEBC's live-streaming mandate.
Now, the fate of the amendment enters a critical phase. What is certain from the legislative record is that the Senate passed the Bill as is, complete with the repeal of Section 39 and the omission of live-streaming. While the National Assembly claim that the House voted to delete Clause 22, the official parliamentary Hansard and division records have yet to be published, or at least I have not sighted them to verify this action on the floor of the House. Furthermore, because the Bill originated in the Senate as Senate Bill No. 29 of 2024 and concerns county governments, the National Assembly cannot unilaterally send an amended Bill to the President for assent. Under Article 110(4) of the Constitution, the Bill must be returned to the Senate for concurrence on the amendments made. If the Senate concurs with the deletion of Clause 22, the original Section 39(1G) will formally survive and the Bill will proceed for presidential assent; however, if the Senate rejects the National Assembly’s amendments, the legislation must be referred to a Mediation Committee pursuant to Articles 112 and 113. Until the Hansard is laid bare and the two Houses conclude this constitutional process, the country waits to see whether Section 39(1G) was truly saved by lawmakers in the National Assembly or merely caught in a high-stakes legislative ping-pong.