The Election Offences Only a Presiding Officer or Returning Officer Can Commit

Updated 2 October 2026.

Some election offences require a badge.

The Election Offences Act 2016 creates a class of crime that only a member or officer of the IEBC can commit, because the conduct is only available to somebody trusted with the process. That class is small, specific and much less discussed than voter fraud, which is the wrong way round given where the leverage actually sits.

An IEBC officer runs a stage of a national count. A voter runs one vote.

Who is covered

Returning officers, one per constituency and county. Deputy returning officers. Presiding officers, one per polling station, and their deputies and clerks. Members and staff of the Commission.

The obligations attach to the role rather than to the person's employment status, so a clerk recruited for a single day carries them for that day.

The results forms are the pressure point

Kenya's results architecture is a chain of forms. The 34 series is presidential, 35 MP, 36 MCA, 37 governor, 38 senator and 39 woman representative. Within a series, the A form is completed at the polling station, the B form at the constituency tally, and the C form at the national tally for the presidential race.

Related: how the chain actually works.

The offences that matter most are offences against that chain. Making a false entry on a results form. Altering a form after it has been signed. Announcing a result that does not match the form. Failing to transmit or deliver a form as required. Substituting a form for another.

Each of those is committed by a person who had lawful custody of a document and did something to it that the law did not permit. That is why the offence category exists separately: the ordinary law of forgery does not describe the specific harm of a returning officer amending a tally.

Refusing an agent a copy of the form

This is the one that a candidate's team is most likely to meet in practice.

At the polling station, the presiding officer completes the results form, it is signed, and copies go to the agents present. An agent who signs is not endorsing the result as correct, and an agent who declines to sign does not invalidate anything. Either way the copy is due.

A refusal to provide it is a serious matter, and it should be recorded with the same precision you would apply to a missing ballot box: the time, the officer's name, the exact words, and whether any reason was given. Do not argue at the desk. Record it, and escalate through the returning officer.

A campaign that reaches the constituency tally holding a copy of every A form from its own agents is in a fundamentally different position from one that reaches it holding a set of complaints. The forms are the case. The complaints are commentary on the case.

Secrecy, partisanship and interference

An election official may not disclose how any voter voted, may not use their position to influence a vote, and may not obstruct a person entitled to vote from doing so.

Officials are also required to be non-partisan, and an officer who is an active member of a party or who campaigns has a problem independent of any result. That is a proper subject of complaint even if nothing about the count is disputed.

Interference with election materials is a further category: tampering with ballot boxes, seals, ballot papers or the KIEMS equipment, or permitting somebody else to do so. Permitting is the operative word in more real cases than doing.

What an agent should record, and why it is enough

You do not need to prove an offence. You need to preserve a fact.

Times, names, stream numbers, seal numbers, the exact form of words used, and a photograph of any document you were lawfully given. Written down as it happens, in a notebook that has page numbers, not typed into a phone three hours later from memory.

That record is what makes a complaint actionable, and it is what separates a case from a grievance. The route a complaint takes from there, and the body it should go to, is a subject on its own: how to report an election offence.

What to do about it before 2027

Train your agents on the forms rather than on vigilance.

An agent who knows what a completed 38A looks like, knows they are entitled to a copy, and knows to write down a refusal calmly is worth more than ten agents who are alert and unfamiliar. Between now and 10 August 2027 there is time to run that training twice. There will not be time to run it in August.