Most of us know Okiya Omtatah for his innumerable cases against the government. Every few months, there’s a headline with his name on it, challenging a levy, a law, overreach, whatever circus we get tossed into. Did you hear about how he once sued Israel and the Republic of Italy for the crucifixion of Jesus Christ? No? That’s because he didn’t. That was a lawyer, Dola Indidis. The confusion is understandable, though. In Kenya, public interest litigation has become so theatrical that all court cases begin to blur into one long national courtroom drama. What often gets lost in this noise are the cases that actually go to the core of democratic power.
Elections serve as the ultimate definition of legitimacy in a democracy, and in Kenya, political stability rises or falls on the credibility of this process. Yet elections are not safeguarded by institutions alone. An informed citizenry is the first line of defense against manipulation, because democracy erodes quietly, through apathy, procedural shortcuts and public ignorance. Understanding the electoral cycle, therefore, is democratic self-preservation.
The case of Okiya Omtatah v. the IEBC represents one of the most direct legal assaults on the architecture of Kenya’s presidential elections. In petitions filed as recently as 2025, Omtatah challenges the constitutionality of the IEBC Act 2011 and related regulations, specifically targeting the existence and role of the National Tallying Centre at Bomas of Kenya. His argument is anchored in Article 86 of the Constitution, which he interprets as establishing the finality of presidential results at the constituency level once declared by returning officers. On this basis, he seeks to invalidate Section 39 of the Elections Act and Regulation 83(2), contending that they unlawfully expand the powers of the IEBC Chairperson to verify, re-tally, or effectively sit in judgment over results that are already final.
Omtatah maintains that the Chairperson’s role should be strictly clerical; limited to the aggregation of verified constituency results, warning that any discretionary authority exercised at the national level creates fertile ground for manipulation. His 2025 petition goes further, calling for the abolition of the National Tallying Centre altogether, arguing that its continued existence contradicts constitutional design and undermines transparency. If successful, these petitions would fundamentally restructure Kenya’s electoral process, shifting decisive authority away from the national center and entrenching constituency-level results as the sole source of presidential legitimacy.
This question, where electoral authority truly resides, sits at the center of Kenya’s electoral framework. Elections are not merely events held every five years but constitutional processes governed by law, and public trust. At the heart of that process stands the Independent Electoral and Boundaries Commission (IEBC), whose mandate is operationalized through the IEBC Act 2011 pursuant to Article 88, charging it with responsibilities that extend beyond election-day logistics to include continuous voter registration, verification of voter details, regulation of party nominations, settlement of electoral disputes (excluding petitions), and voter education.
At the core of this mandate lies integrity: independence and impartiality are not decorative values but functional necessities, because when the institution managing elections is perceived as compromised, every outcome, no matter how procedurally accurate, becomes suspect. This insistence on integrity is the product of Kenya’s long and often painful electoral history.
Few electoral experiments capture Kenya’s democratic low point as vividly as the 1988 Mlolongo (queue voting) system. Under this arrangement, voters physically lined up behind candidates or their representatives, effectively eliminating ballot secrecy. Voting became a public performance, vulnerable to coercion and social pressure. The system distorted outcomes and humiliated the very idea of free choice.
The rejection of Mlolongo was not instantaneous. It took sustained agitation, culminating in the repeal of Section 2A and the return of multi-party elections in 1992. Legitimacy could no longer be manufactured through controlled participation.
The most decisive transformation came with the 2010 Constitution, which entrenched rights-based participation and placed sovereignty squarely in the hands of the people. Article 1(2) affirms that sovereign power belongs to citizens and is exercised through their elected representatives. Article 38 guarantees every citizen the right to free, fair, and regular elections, reframing elections as continuous constitutional processes.
Between 2013 and 2022, Kenya embraced advanced electoral technology, including biometric voter registration and electronic transmission of results. These reforms were intended to address historical weaknesses; ballot stuffing, ghost voters and manual tampering.
Yet technology did not eliminate controversy. Party primaries remained chaotic and administrative failures continued to undermine confidence. It became quite clear that technology could support but not substitute integrity.
This reality became painfully evident in the management of campaigns and political finance.
Political parties are legally recognized as essential instruments of democracy, required to promote national unity and human rights. They must practice internal democracy and maintain transparent finances, under the oversight of the Office of the Registrar of Political Parties (ORPP).
Campaign conduct is regulated by the Elections Act 2011 and the Election Campaign Financing Act (ECFA) 2013, which introduced spending caps and disclosure requirements. However, the IEBC has deferred full implementation of the ECFA since 2017.
This delay became the subject of litigation in Okiya Omtatah Okoiti v. IEBC. While the High Court upheld the IEBC’s administrative discretion, it issued a critical warning: prolonged non-implementation undermines constitutional principles of transparency and accountability. Elections distorted by unchecked money are structurally illegitimate.
Electoral integrity ultimately hinges on what happens after voting ends. Regulation 83 requires that votes be counted, announced, and recorded at the polling station. Form 34A is the primary legal record of presidential results at that level.
The Maina Kiai Case (2017) decisively clarified that Constituency Returning Officers’ results are final for presidential elections. The national tallying center’s role is limited to collation, not alteration. This distinction was foundational in the 2017 Supreme Court nullification of the presidential election, the first of its kind in Africa.
The Court’s reasoning was process integrity is as important as final numbers. Even a numerically accurate outcome cannot stand if constitutional procedures are violated. The IEBC’s failure to meet Article 81’s requirements for verifiability and transparency rendered the election invalid, regardless of margins.
In response to institutional weaknesses, the IEBC (Amendment) Act 2024 reconstituted the commission. It expanded the selection panel to enhance inclusivity and introduced requirements for commissioners to possess specialised expertise in ICT and accounting, recognizing that modern elections demand technical competence alongside legal credibility.
Yet laws alone cannot secure legitimacy. The sources repeatedly return to one conclusion: electoral democracy lives or dies with citizen participation. Registering, verifying details, and voting are exercises of sovereign power.
As Brian Sengeli observes, youth participation defines democratic renewal. When citizens disengage, they surrender governance. The ballot remains the most basic expression of nationhood, and abstention guarantees that others will decide the country’s path.
If you do not vote someone else will vote for you.