The Election Offences Act: Laws of Kenya
The Election Offences Act: Laws of Kenya
NO. 37 OF 2016
NO. 37 OF 2016
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1. Short title
This Act may be cited as the Election Offences Act, 2016.
2. Interpretation
In this Act, unless the context otherwise requires—
"ballot box" means a transparent container with a slot on the top sufficient
to accept a ballot paper in an election or in a referendum but which prevents
access to the votes cast until the closing of the voting period;
"ballot paper" means paper used to record the choice made by a voter and
shall include an electronic version of a ballot paper or its equivalent for purposes
of electronic voting;
"candidate" means a person contesting for an elective post;
"Commission" means the Independent Electoral and Boundaries
Commission established under Article 88 of the Constitution;
"constituency" means one of the constituencies into which Kenya is divided
under Article 89 of the Constitution;
"county" means one of the counties into which Kenya is divided under
Article 6 (1) of the Constitution and specified in the First Schedule to the
Constitution;
"election" means a presidential, parliamentary or county election and
includes a by-election;
"election court" means the Supreme Court in exercise of the jurisdiction
conferred upon it by Article 163 (3)(a) or the High Court in the exercise of the
jurisdiction conferred upon it by Article 165 (3)(a) of the Constitution or the
Resident Magistrate's Court designated by the Chief Justice in accordance with
section 75 of the Elections Act, 2011 (No. 24 of 2011);
"election period" means the period between the publication of a notice
by the Commission for a presidential, parliamentary or county election under
sections 14, 16, 17 and 19 of the Elections Act, 2011 and the Gazettement of
the election results;
"referendum committee" has the meaning assigned to it under the
Elections Act, 2011;
"Register of Voters" has the meaning assigned to it under the Elections
Act, 2011;
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(a) forges, counterfeits, defaces or destroys any ballot paper or the official
perforation, stamp or mark on any ballot paper;
(b) without authority supplies any ballot paper to any person;
(c) sells or offers for sale any ballot paper to any person;
(d) purchases or offers to purchase any ballot paper from any person;
(e) not being a person entitled to be in possession of any ballot paper
which has been marked with any official perforation, stamp or mark
has any such ballot paper in his possession;
(f) puts into any ballot box anything other than the ballot paper which he
is authorised by law to put in;
(g) without authority takes out of a polling station any ballot paper or is
found in possession of any ballot paper outside a polling station;
(h) not being an election official and not being authorised, removes
election material from a polling station before, during or after an
election;
(i) without authority destroys, takes, opens, disposes of or otherwise
interferes with any election material in use or intended to be used for
the purposes of an election;
(j) without authority prints any ballot paper or what purports to be or is
capable of being used as a ballot paper at an election;
(k) for the purposes of an election, manufactures, constructs,
imports, has in his possession, supplies or uses, or causes to
be manufactured, constructed, imported, supplied or used, any
appliance, device or mechanism by which a ballot paper may be
extracted, affected or manipulated after having been deposited in a
ballot box during the polling at any election;
(l) not being authorised to do so under this Act, makes any mark on any
ballot paper issued to any person other than to himself;
(m) votes at any election when they are not entitled to vote;
(n) votes more than once in any election;
(o) interferes with a voter in the casting of his vote in secret;
(p) pretends to be unable to read or write so as to be assisted in voting; or
(q) pretends to be visually impaired or suffering from any other disability
so as to be assisted in voting,
commits an offence and is liable on conviction, to a fine not exceeding one
million shillings or to imprisonment for a term not exceeding six years or to both.
6. Offences by members and staff of the Commission
A member of the Commission, staff or other person having any duty to perform
pursuant to any written law relating to any election who—
(a) makes, in any record, return or other document which they are
required to keep or make under such written law, an entry which
they know or have reasonable cause to believe to be false, or do not
believe to be true;
(b) permits any person whom they know or have reasonable cause to
believe to be able to read or write to vote in the manner provided for
persons unable to read or write;
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(c) permits any person whom they know or have reasonable cause to
believe not to be visually impaired or a person with disability to vote in
the manner provided for persons who are visually impaired or persons
with disability, as the case may be;
(d) wilfully prevents any person from voting at the polling station at which
they know or have reasonable cause to believe such person is entitled
to vote;
(e) wilfully rejects or refuses to count any ballot paper which they know
or have reasonable cause to believe is validly cast for any candidate
in accordance with the provisions of such written law;
(f) wilfully counts any ballot paper as being cast for any candidate which
they know or have reasonable cause to believe was not validly cast
for that candidate;
(g) interferes with a voter in the casting of his vote in secret;
(h) where required under the Elections Act (No. 24 of 2011) or any other
law to declare the result of an election, fails to declare the results of
an election;
(i) except in the case of a member, officer or person authorised to do so,
purports to make a formal declaration or formal announcement of an
election result;
(j) without reasonable cause does or omits to do anything in breach of
his official duty;
(k) colludes with any political party or candidate for purposes of giving an
undue advantage to the political party or candidate;
(l) wilfully contravenes the law to give undue advantage to a candidate
or a political party on partisan, ethnic, religious, gender or any other
unlawful considerations; or
(m) fails to prevent or report to the Commission or any other relevant
authority, the commission of an electoral offence committed under this
Act,
commits an offence and is liable on conviction, to a fine not exceeding two
million shillings or to imprisonment for a term not exceeding five years or to both.
[ Act No. 34 of 2017, s. 11.]
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to ascertain at such counting the number of any ballot paper, or communicate any
information obtained at such counting as to the candidate for whom any vote is
given by any particular ballot paper, commits an offence.
(3) A person attending any proceedings relating to an election and who, without
lawful excuse—
(a) communicates, before the poll is closed, to any person any
information obtained at those proceedings as to any official
perforation, stamp or mark to be used in connection with any paper;
(b) communicates to any person at any time any information obtained at
those proceedings as to the number of ballot papers issued to any
person;
(c) attempts to ascertain at the proceedings in connection with the receipt
of ballot papers, the number on any ballot paper;
(d) attempts to ascertain at the proceedings in connection with the receipt
of the ballot papers the candidate for whom any vote is given in any
particular ballot paper or communicate any information with respect
thereto obtained at those proceedings; or
(e) captures an image of any marked ballot for purposes of financial gain
or for showing allegiance,
commits an offence and is liable on conviction, to a fine not exceeding one
million shillings or to imprisonment for a term not exceeding three years or to both.
8. Personation
(1) A person, who at an election—
(a) applies for a ballot paper in the name of another person, or of a
fictitious person;
(b) having voted once at any such election, votes again or applies at the
same election for a ballot paper in his own name;
(c) votes with the knowledge that he is not entitled to vote in that election;
or
(d) presents himself as an election official knowing that he is not,
commits the offence of personation, which shall be cognizable.
(2) For the purposes of this section, a person who has applied for a ballot paper
for the purpose of voting shall be deemed to have voted.
9. Bribery
(1) A person who, during an election period—
(a) directly or indirectly offers a bribe to influence a voter to—
(i) vote or refrain from voting for a particular candidate or political
party;
(ii) attend or participate in or refrain from attending or participating
in any political meeting, march, demonstration or other event of
a political nature or in some other manner lending support to or
for a political party or candidate;
(b) in any manner unlawfully influences the result of an election;
(c) directly or indirectly, in person or by any person on his behalf, in order
to induce any other person to agree to be nominated as a candidate
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commits an offence and is liable on conviction to a fine not exceeding two million
shillings or to imprisonment for a term not exceeding six years or to both.
12. Use of national security organs
A candidate or any other person who uses a public officer, or the national
security organs to induce or compel any person to support a particular candidate or
political party commits an offence and is liable on conviction to a fine not exceeding
ten million shillings or to imprisonment for a term not exceeding six years or to both.
13. Offences relating to elections
A person who—
(a) prints, publishes, distributes or posts up, or causes to be printed,
published, distributed or posted up, any advertisement, handbill,
placard or poster which refers to any election and which does not bear
upon its face the names and addresses of the printer and publisher;
(b) makes or publishes, before or during any election, for the purpose
of promoting or procuring the election of any candidate, any false
statement of withdrawal of any other candidate at such election;
(c) forges, defaces or destroys any nomination paper, or delivers to a
returning officer any nomination paper knowing it to be forged;
(d) interferes with election material by removing destroying, concealing
or mutilating or assists in the removal, destruction, concealment
or mutilation of any such material save on the authority of the
Commission or under the provisions of the Elections Act (No. 24 of
2011);
(e) directly or indirectly prints, manufactures or supplies or procures the
printing, manufacture or supply of any election material in connection
with the election save on the authority of the Commission;
(f) interferes with free political canvassing and campaigning by—
(i) using language which is threatening, abusive or insulting or
engages in any kind of action which may advocate hatred, incite
violence or influence the voters on grounds of ethnicity, race,
religion, gender or any other ground of discrimination;
(ii) directly or indirectly, using the threat of force, violence,
harassment or otherwise preventing the conduct of any political
meeting, march, demonstration or other event of a political
nature or any other person from attending or participating
therein;
(iii) creating a material disruption with the intention of preventing a
political party from holding a public political meeting;
(iv) impeding, preventing or threatening to impede or prevent the
right of any representative of any political party from gaining
access, in the manner and during the hours prescribed to voters
in any particular area, whether public or private for the purposes
of canvassing and campaigning and soliciting membership and
support; or
(v) impeding, preventing or threatening to impede or prevent
a member of the Commission, a representative of the
Commission or any other authorised person or organisation
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(4) A person who lets, lends or employs a vehicle, vessel, aircraft, or animal
of transport knowing that it is intended to be used to convey voters to and from a
poll commits an offence.
(5) A person who hires, borrows or uses a vehicle, vessel, aircraft, or animal
of transport knowing that it is intended to be used to convey voters to and from a
poll commits an offence.
(6) Nothing in subsection (4) or subsection (5) shall prevent an owner of a
vehicle, vessel or animal of transport of any kind from letting, hiring or being
employed or used by a voter or several voters at their joint cost for the purpose of
conveying the voters to or from a poll.
(7) Notwithstanding anything in this section—
(a) where it is the ordinary business of a voter as an advertising agent to
exhibit for payment bills and advertisements, a payment to or contract
with such voter if made in the ordinary course of business, shall not
be deemed to be an offence within the meaning of this section; and
(b) where voters are unable at an election to reach their polling stations
from their place of residence without crossing the sea or a tributary
thereof or a river, means may be provided for conveying the voters
to their polling stations or to enable them to cross in order to reach
their polling stations.
(8) The means of conveyance referred to in subsection (7)(b) shall be made
available equally to all voters who wish to be conveyed to vote.
17. Offences relating to the use of technology in elections
A person who, in relation to the electoral process—
(a) steals or intentionally causes damage to electronic equipment;
(b) knowingly or intentionally conceals, destroys, alters or knowingly or
intentionally causes another to conceal, destroy or alter any computer
source code used for a computer, computer programme, computer
system or computer network;
(c) with the intent to cause or knowing that he is likely to cause wrongful
loss or damage to the public or any person, destroys or deletes or
alters any information residing in a computer resource or diminishes
its value or utility;
(d) accesses the whole or any part of a computer system without
authorisation;
(e) intercepts, by technical means and without authorisation, any non-
public transmission of computer data to, from, or within a computer
system including electromagnetic emissions from a computer system
carrying such computer data;
(f) intentionally or recklessly alters or interferes with the functioning of a
computer or computer network by inputting, transmitting, damaging,
deleting, deteriorating, altering or suppressing computer data or a
computer program, electronic document, or electronic data message
without authority, including by the introduction or transmission of
viruses;
(g) uses, produces, sells, procures, imports, distributes, or otherwise
makes available, without lawful authority—
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