During the constitution review process there were significant calls to separate the dates of the Presidential race from those of the other electoral seats. That suggestion was made in the belief that if the race took place at a different time, it would not generate the kind of unpleasant political and social tensions that have surrounded previous general elections. Despite those appeals, the Constitution of Kenya 2010 provides for elections for the Office of the President to be conducted on the same day as the elections for other political seats.
136. (2) An election of the President shall be held–– (a) on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year; ........
The election of the President of Kenya is by popular vote.
136. (1) The President shall be elected by registered voters in a national election .......
138. (3) In a presidential election— (a) all persons registered as voters for the purposes of parliamentary elections are entitled to vote;
Although Kenya's electoral system is by popular vote, in order to be declared the winner of a presidential election, a candidate must obtain a specified minimum number of votes, as well as a specified minimum distribution levels of those votes. In other words, the President-elect must enjoy both popular and wide support in the country. The first requirement is that the candidate must garner at least 50% plus one, of the presidential votes.
138. (4) A candidate shall be declared elected as President if the candidate receives— (a) more than half of all the votes cast in the election; ........
It is therefore not enough to poll the highest number of votes: the winner must enjoy popular support. In the March 2013 General Elections, Uhuru Kenyatta was declared the winner in a tight race after he garnered 50.5% of the total votes cast. In one past election after the reintroduction of multi-party politics, the declared winner had barely garnered more than 35% of the vote! "In 1992, Moi won the presidency with 36 per cent of the total votes cast compared with the remainder, 64 percent, of the combined votes for the opposition. Since the electoral process had no threshold requirement for the winner to attain at least 50 per cent + 1 of the vote, Moi was declared president" (Oloo, 2011).
The author wishes to mention here that a petition was lodged in the Supreme Court seeking interpretation of the meaning of 'all the votes cast' as written in Article 138. (4) above, because the vote tally announced by the IEBC included rejected votes. The Court ruled that rejected votes cannot "...... include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations......."
As recently as 2007, the declared winner had only 46 per cent of the votes while his closest challenger had 44% of the votes - meaning 54% of the presidential vote went to others other than to the winner.
Under the the second requirement that strives to ensure that the President-elect enjoys wide support, the declared winner must garner at least 25 per cent of the vote in at least half of the counties.
(4) A candidate shall be declared elected as President if the candidate receives— (b) at least twenty-five per cent of the votes cast in each of more than half of the counties.
This requirement takes cognisance of population numbers as varying widely between Counties. It is therefore intended to give the country a President who is popular in both the 'big' and the 'small' Counties. Both the winner and runners up in the March 2013 General Elections garnered more than the requisite 25% in 24 Counties.