United Green Movement (UGM) co-party leader and former Chief Justice David Maraga/HANDOUT

Former Chief Justice David Maraga has opposed proposed changes to election laws that would remove mandatory live-streaming of results, arguing that transparency in the electoral process is a constitutional requirement.

Maraga said Article 86 of the Constitution requires the electoral system to be accurate, verifiable, secure, accountable and transparent, adding that no legislation can override the Constitution.

In a statement, he said he would work with the People’s Coalition for Electoral Reforms to oppose efforts he believes could undermine transparency in elections.

“The Constitution is clear. The electoral system must be ‘accurate, verifiable, secure, accountable and transparent’. No law is superior to our Katiba,” Maraga said.

He warned against changes he believes could take the country back to the era of the defunct Electoral Commission of Kenya (ECK) and the violence that followed the disputed 2007 General Election.

“I will work with the People’s Coalition for Electoral Reforms to thwart any efforts to return us to the dark era of ECK or the post-election violence of 2007/08,” he said.

Maraga’s remarks follow the passage of the Elections Amendment Bill 2024 by the National Assembly. The proposed changes seek to remove the requirement for election results to be live-streamed as they are transmitted from polling stations.

The Bill has not yet become law and awaits presidential assent.

In a separate address, Maraga said election results should be published on the Independent Electoral and Boundaries Commission (IEBC) website as they are received, rather than being available only at the commission’s tallying facilities.

“The results transmission, we are demanding that they should not only be posted on the IEBC boardroom or wherever it is alone, it should be put on the website as the results come,” he said.

He said the IEBC chairperson’s role was to aggregate results, establish whether a presidential candidate had secured more than 50 per cent of the votes cast and at least 25 per cent of the votes in 24 counties, then declare the winner.

“So we are demanding that the results be transmitted and put on the website where everybody can see. That is what transparency means when you look at Article 86,” Maraga said.

Article 86 of the Constitution sets out requirements for the administration of elections, including that votes be counted, tabulated and the results announced promptly, with mechanisms in place to facilitate the verification of results.

The proposed amendment has drawn attention to the distinction between the constitutional requirements governing elections and the specific procedures set out in the Elections Act. Maraga argues that the proposed changes would undermine the constitutional principles of transparency and accountability.