Types of Election Offences in Kenya

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–
  • (i) a device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences under this Act; or
  • (ii) a computer password, access code, or similar data by which the whole or any part of a computer system may be accessed with intent that it be used for the purpose of committing an offence under this Act;
• (h) knowingly inputs, alters, or deletes computer data with the intent that the result be considered or acted upon for legal purposes as if it were authentic, regardless of whether or not the data is directly readable and intelligible; or
• (i) intentionally acquires, uses, misuses, transfers, alters or deletes another person’s identification information,

commits an offence and shall be liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding ten years or to both.

18. Employers to allow employees reasonable period for voting

(1) Every employer shall, on polling day, allow a voter in his employ a reasonable period for voting, and no employer shall make any deduction from the pay or other remuneration of any such voter or impose upon or exact from them any penalty by reason of his absence during such period.

(2) An employer who directly or indirectly refuses, or by intimidation, undue influence, or in any other manner interferes with the granting to any voter in his employ of a reasonable period for voting as specified in subsection (1) 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.

(3) This section shall not extend to such categories of employees as the Commission may, from time to time by notice in the Gazette designate, or to an employee who at the election in question is acting as an election officer within the meaning of the Elections Act.

(4) The provisions of this section shall bind the Government.

19. Aiding and abetting offences

(1) A person who aids, abets, counsels or procures the commission of or attempts to aid, abet, counsel, or procure the commission of an offence specified in this Act commits an offence.

(2) An offence under subsection (1) shall be cognizable.

20. Breach of Electoral Code of Conduct

(1) Every officer of a political party and every nominated candidate who, attempts to participate in or participates in an election without subscribing to the Electoral Code of Conduct 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.

(2) Any person who contravenes the Electoral Code of Conduct commits an offence.

(3) The trial of an offence under this section shall be without prejudice to any proceedings in or consequent upon a petition.

21. Powers of prosecution

The Director of Public Prosecutions shall have the power to order investigations and to prosecute offences under this Act.

22. Proceedings to be commenced within two years

(1) The Director of Public Prosecutions shall commence a proceeding in relation to an offence under this Act within twelve months of the date of the election to which the offence relates.

(2) In the case of an offence arising out of the determination of an electoral Court under section 87 of the Elections Act, 2011, the time provided under subsection (1) shall start to run from the date of final judgment.

23. Power to appoint special magistrates

(1) The Chief Justice may, by notification in the Gazette, appoint as many special Magistrates as may be necessary to hear and determine matters relating to offences under this Act.

(2) Notwithstanding anything contained in the Criminal Procedure Code (Cap. 75), a special Magistrate shall, as far as practicable, hold the trial of an offence under this Act on a day-to-day basis until completion.

24. General penalty

(1) A person who contravenes a provision in this Act for which a penalty has not been provided for, 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.

(2) An offence under this Act relating to an election shall, with necessary modifications, be an offence during a referendum.

(3) A person who is convicted of an offence under this Act shall not be eligible for election or nomination in an election for a period of five years following the date of conviction.

25. Repeal of Part VI of No. 24 of 2012

The Elections Act is amended by repealing Part VI.

(Information comes from the Elections Act.