If the law explicitly states that the streamed numbers cannot form the basis of a declaration, this structural deterrent is fatally compromised

Recent political discourse around the Elections (Amendment) (No 2) Bill, 2024, exposed a troubling susceptibility to misinformation. The panic that Parliament had axed the live streaming of election results was unfounded.

The National Assembly has clarified that by deleting Clause 22 of the Senate Bill, they preserved Section 39 of the Elections Act. Politically, a tactical manoeuvre but legally, a half-measure that leaves a constitutional wound.

To understand the Bill's current legislative status, we must disentangle its statutory architecture. The law recognises three distinct mechanisms: live streaming (real-time public broadcasting), electronic transmission (the KIEMS routing of results to the tallying system) and the publication of result forms in a public portal.

Retention of Section 39 guarantees livestreaming, alongside electronic transmission and public portal publication. However, these are functionally distinct. Transmission and publication facilitate post-hoc verification, while livestreaming is the real-time structural safeguard allowing the public to witness the declaration at the source.

This legislative step is, however, incomplete. The core legal question is not whether a camera operates at the polling station, but whether the stream has any legal probative value.

The unresolved constitutional contradiction is that, in the 2018 decision of Katiba Institute v Attorney General, the High Court struck down Section 39(1G) of the Elections Act. The court ruled that the proviso, which stated that livestreamed results were "for purposes of public information only and shall not be the basis for a declaration by the Commission," was unconstitutional. It rendered the stream legally worthless, violating the constitutional fidelity in Articles 38, 81(e), and 86.

Parliament preserved the stream but failed to address the unconstitutional proviso. The subsequent 2026 High Court decision in Okoiti & another v IEBC offered no reprieve either. While the Okoiti court upheld Section 39 generally, it declined to quash the specific "public information only" limitation, dismissing the petition on grounds of prematurity.

Deleting Clause 22 was both a robust political reaffirmation of transparency and a legislative drafting challenge. Preserving Section 39 did not cure the Katiba Institute defect; it entrenched it. The stream exists, but remains legally impotent as a basis for declaration, exposing the IEBC to a minefield of post-election litigation.

The political and legal implications for the 2027 general election are profound. The credibility of the electoral management body hinges on this. Livestreaming is not public relations; it is a vital deterrence mechanism. It is exponentially harder to manipulate tallying centre numbers when thousands of citizens and agents have witnessed the raw results at the source.

The burden now falls on Parliament to align legislative intent with constitutional reality. I recommend the following:

First, Parliament must surgically amend Section 39(1G). It must invoke its legislative authority to expunge the words "public information only" and replace them with clear statutory text affirming that streamed results constitute part of the official record and possess evidentiary value in verification and dispute resolution.

Second, Parliament must expedite the Senate concurrence process under Article 110(4). Fast-tracking mediation, if any, is imperative to provide the IEBC and the electorate with legal certainty well before the 2027 polls.

Third, Parliament and the IEBC must mount a robust public education campaign to counter the misinformation and ensure that the public understands the retention of the livestreaming duty.

Finally, Parliament must ensure that IEBC is adequately resourced to implement Section 39(1G) in strict compliance with the High Court's decisions.

The National Assembly deserves political credit for resisting the attempt to dismantle the livestream and for debunking false reports. But saving the camera is only half the constitutional battle. Parliament must act to cure the Katiba Institute defect. The political cost of legislative surgery is minimal; the legal cost of an election conducted under a legally worthless livestream could be catastrophic.