The electoral commission has asked Parliament to clarify in the proposed law whether the chairman should verify all the forms from the polling stations before declaring the result of the presidential election.
At a meeting that ended at midnight on Thursday, the commission also asked the MPs to think through a proposal to have errant Presiding Officers and Returning Officers serve jail terms for making clerical errors.
Commissioner Abdi Guliye said the expectation from the annulment of the last elections was that the Returning Officer for the presidential election should have all Forms 34A from the 40,883 polling station before the announcement.
"They must arrive in Nairobi and not just arriving. They must be physically counter-checked with 34B, the 290 from the constituencies. If that is to happen, you don't expect the IEBC to announce a winner in the statutory period. You will probably need a month to do that," said Prof Guliye.
He asked the parliamentary committees to give the IEBC clarity. The commissioner argued that the law envisages a division of labour between the Presiding Officer, the Returning Officer at the constituency and the Returning Officer for the presidential election, the chairman of the IEBC.
"If we trust our presiding officers, then we should trust the Form 34A which they fill. If we trust our Returning Officer at the constituency level, and we have said they cannot announce results at the constituency before they actually receive the Forms 34A from each Presiding Officer, if that is to happen, why can't we trust the Forms 34B generated out of the Forms 34A for the National Returning Officer to generate the Form 34C?" he posed.
Prof Guliye said "it makes no sense" to require the chairman of the IEBC to have all the 40,883 Forms 34A to counter-check with Forms 34B before preparing the final form given that all these forms will be in the public portal because they will have been transmitted.
"You need to give us a little more clarity in terms of the pathway for these transmission of results. If we have mandated certain officers to do certain functions, why are we asking a senior officer to go back and redo that function that was done by those officers mandated in law to do those functions?" he asked.
IEBC chairman Wafula Chebukati has also asked the Supreme Court to clarify his role regarding the verification of the results given the conflicting directions from the annulment of the presidential elections and the Maina Kiai.
Mr Chebukati, and the commission, are caught in the conundrum of being vilified for failing to act on the errors on the forms yet the Court of Appeal decided that the results declared at the constituency are final and unchangeable.
The committee was also asked to reconsider the proposed punishment for Presiding Officers and Returning Officers who fail to complete the result forms properly or submit incomplete forms.
While the commission agreed with the proposal in the bill to have the officers sent to jail for a maximum five years without the option of a fine, there was hesitancy given that the majority of these employees are temporary hires.
Commissioner Roselyn Akombe said the decision could be taken as it is if the people's representatives felt that this punishment was good enough for the employees.
But Prof Guliye urged the committee to consider the pressure the officers usually are under given that on Election Day, they will have been at work all day and night and will at the time of results be handling inquiries from a range of people.
"These guys get confused. We have seen officers that have actually broken down and in such a scenario, you can fail to sign a form. Actually, it has happened. Forms were transmitted, scanned and transmitted and it is in the web portal but later on the same guy signs the same form correctly and brings it and then you have in the portal two forms that are at variance," said Prof Guliye.
He said those were some of the failures pointed out at the Supreme Court.
"I wouldn't say they were rampant but there were cases in the forms that we examined as a commission after the elections," he added.
The committees are headed for a joint retreat this weekend to write their report for tabling in both the Senate and the National Assembly next Tuesday.
The National Assembly will then pass the Bill and hand it over to the Senate to do the same. All this has to happen in the space of three days - Tuesday, Wednesday and Thursday - and four sittings as the National Assembly is taking a 25-day break starting Friday next week.