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Types of Election Offences in Kenya (Page 2)

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;

voter” means a person whose name is included in a current register of voters;

ward” means an electoral area within a county delimited in accordance with Article 89 of the Constitution.

3. Offences Relating to Register of Voters

A person who—

  • (a) without authority makes, prepares, prints or is in possession of a document or paper purporting to be a register of voters;
  • (b) knowingly makes any false statement on, or in connection with any application to be registered in any register of voters; or
  • (c) aids, abets, counsels or procures the commission of or attempts to commit any of the offences referred to in paragraphs (a) and (b),

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.

4. Offences Relating to Multiple Registration as a Voter

(1) A person who—

  • (a) being registered as a voter in a register of voters applies to be registered as a voter—
    • (i) in any other register of voters, otherwise than in substitution of his subsisting registration; or
    • (ii) in the same register of voters;
  • (b) having applied to be registered in a register of voters which application has not been either granted or rejected, applies to be registered in the same register of voters or in another register of voters;
  • (c) simultaneously makes two or more applications to be registered as a voter; or
  • (d) having been disqualified by an election court, applies to be registered as a voter,

commits an offence is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

(2) Any person who commits an offence under subsection (1) shall, in addition to the penalty provided in subsection (1), not be eligible to vote in that election or in the next election.

(3) A member or officer of the Commission or a person who aids another person to register as a voter more than once commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

(4) A candidate who aids a person to register as a voter more than once, commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both and shall not be eligible to contest in the ongoing general election.

5. Offences Relating to Voting

A person who—

  • (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;
  • (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.

7. Maintenance of secrecy at elections

(1) An election officer, candidate, agent or other person who—

  • (a) without authority, obtains or attempts to obtain, in a polling station, information as to the candidate for whom any voter in the station is about to vote or has voted;
  • (b) communicates at any time to any person, any information obtained in a polling station as to the candidate for whom any voter in the station is about to vote or has voted; or
  • (c) discloses the serial number of the ballot paper issued to any voter at the station,

commits an offence.

(2) Every election officer, candidate, or agent in attendance at the counting of votes who fails to maintain or aids in violating the secrecy of the ballot or attempts 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.