Kenya’s electoral framework has evolved through successive reforms aimed at strengthening election credibility. The Elections Act No. 24 of 2011 was enacted to give effect to the constitutional framework for elections established by Kenya’s 2010 Constitution. Section 39 addressed the transmission, tallying, and announcement of election results, while Article 86 imposed duties on the Independent Electoral and Boundaries Commission (IEBC) to ensure accurate, transparent, and accountable electoral processes.   

Following controversies surrounding the 2013 and 2017 elections, electoral reforms increasingly focused on electronic transmission, verification and public access to results. The James Orengo and Kiraitu Murungi parliamentary Select Committee on Election Laws Amendments considered proposals to improve election-result management and transparency. The 2017 amendments added more detailed provisions to Section 39, including requirements to electronically transmit and publish presidential election results and to livestream results announced at polling stations. These changes reflected a wider objective: reducing the risk that results announced at polling stations would differ from those eventually declared at higher tallying centres without adequate explanation or verification.  

What Section 39(1G) Required  

Section 39(1G), introduced by the Election Laws (Amendment) Act, 2017, required the IEBC to establish a mechanism to livestream results announced at polling stations. It further stated that the streamed results were for public information only and would not form the basis for the Commission’s declaration. Two distinct functions were therefore contemplated. First, the public would have access to results as announced at polling stations. Second, the IEBC would undertake the legally prescribed process of receiving, tallying, verifying and declaring election results. The controversy arose because the provision expressly restricted the legal significance of the livestreamed results, despite their originating from the primary point at which votes were counted and announced. Importantly, the provision did not require every media house to livestream results from every polling station independently. It placed the obligation on the IEBC to establish a livestreaming mechanism.  

What the Court of Appeal Declared Unconstitutional  

In National Assembly v Katiba Institute & 6 Others [2023] KECA 1174 (KLR), the Court of Appeal, on 6 October 2023, upheld the High Court’s finding that several 2017 amendments to the Elections Act were unconstitutional, including Section 39(1G). The dispute was not about whether television stations could broadcast election results. It concerned the legal framework governing the IEBC’s handling of results and the significance attached to information streamed from polling stations. The court reasoned that results announced at polling stations are the primary source of the figures subsequently collated at constituency and national tallying centres. Restricting livestreamed results to public information alone risked weakening citizens’ ability to compare the figures announced at the original counting point with those ultimately declared. The court found this inconsistent with Articles 10, 81(e) and 86 of the Constitution, which establish transparency, accountability, accuracy and verifiability as fundamental electoral principles. Article 86(b) requires presiding officers at polling stations to promptly count, tabulate, and announce votes. In contrast, Article 86(c) requires returning officers to collate results openly and accurately and announce them promptly. The court was concerned that livestreaming should meaningfully contribute to these safeguards, rather than become a public display disconnected from verifying the final results.   

The ruling did not establish that whatever appears on a television screen automatically constitutes the legally declared result. Nor did it prohibit media houses from broadcasting election results. It challenged the statutory attempt to diminish the significance of streamed results within the wider constitutional framework.  

Is the IEBC Constitutionally Required to Livestream Results?  

The distinction here is between an express constitutional obligation and a statutory requirement. The Constitution does not use the term ‘livestreaming’ or prescribe a particular broadcasting technology. Instead, Article 86 imposes broader duties regarding the accuracy, transparency and announcement of election results. Section 39(1G) of the Elections Act subsequently provided the express statutory basis for requiring the IEBC to establish a livestreaming mechanism. Therefore, livestreaming is a legislative means of supporting constitutional principles, rather than a technology expressly named in the Constitution. Article 88(4) also assigns the IEBC responsibility for conducting or supervising referenda and elections. Read together with Article 86, these provisions establish the Commission’s central responsibility for managing a transparent electoral process. Media houses have a separate role in reporting and relaying information to the public; they do not assume the IEBC’s constitutional responsibility for administering elections.   

Who Livestreams the Results?  

Public misunderstanding partly stems from how election-night results are presented. The IEBC manages the official results process, including the technology and mechanisms used to transmit and display results. Media houses then use available feeds, figures and other information to inform their audiences. As reported during the 2022 election cycle, the IEBC displayed results on screens at the national tallying centre, from which broadcasters reported which candidates were leading, the margins between them and the number of polling stations reporting. This is distinct from a television station independently counting votes or declaring an election winner. Consequently, the figures projected on a television broadcast may reflect the IEBC’s results display, but the broadcast itself is not necessarily the statutory livestreaming mechanism contemplated by Section 39(1G). The relevant questions are where the information originated, what it represents and whether it can be verified against the official result forms.  

What Does the Elections Amendment Bill Mean?  

The debate resurfaced under the Elections (Amendment) (No. 2) Bill, 2024. The Senate-approved version proposed changes to Section 39 that would remove the existing livestreaming requirement. However, on 22 October 2026, the National Assembly passed the Bill with amendments, deleting the clause that sought to replace Section 39. Consequently, the livestreaming requirement was retained in the version passed by the National Assembly. The Bill must return to the Senate for consideration of the amendments, so its legislative process is not yet complete.   

In Conclusion…  

Kenya’s livestreaming debate is not fundamentally about whether media houses may project election results. It is about the IEBC’s responsibility to administer transparent elections and the public’s ability to scrutinise results from their source through to their final declaration. The Court of Appeal’s 2023 judgment challenged the restriction that limited streamed results to informational use, not to broadcasting. The distinction matters: media coverage communicates election information, while the IEBC remains responsible for the official electoral process. The ongoing legislative debate concerns how best to preserve that transparency within a legally sound framework.