161 5.17.2 However, that was not the case at the enactment of the Elections Act, 2011 and at the first general election under the new constitutional era in 2013. 5.18 History of Section 39 of the Elections Act 5.18.0.1 On promulgation of the 2010 Constitution, Parliament was given certain timelines to pass ‘consequential’ pieces of legislation (Article 261(1) of the Constitution). Some of these legislation were to be on: i. elections and electoral disputes (Articles 82 & 87); ii. the Independent Electoral and Boundaries Commission (Article 88); and iii. political parties (Article 92). (Refer to the 5th Schedule of the Constitution) 5.18.0.2 The Elections Act, No 24. of 2011 was assented to on the first Anniversary of the Constitution’s promulgation, narrowly beating the constitutional timeline for its enactment. The Act commenced operation on 2 December 2011. 5.18.0.3 Section 39 of the Elections Act states as follows: (1) The Commission shall determine, declare and publish the results of an election immediately after close of polling. (2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election. (3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed. 5.18.0.4 At inception, the provision made no reference to transmission of election results for presidential elections. The only statutory reference to the word ‘technology’ was in section 44 of the Elections Act, which then read ‘The Commission may use such technology as it considers appropriate in the electoral process’. This provision alluded to the IEBC having the discretion on how, when or whether to use technology. 5.18.0.5 However, regulation 82 of the Elections (General) Regulations, 2012 (then) provided as follows: (1) The presiding officer shall, before ferrying the actual results of the election to the returning officer at the tallying venue, submit to the returning officer the results in electronic form, in such manner as the Commission may direct. (2) The results submitted under sub-regulation (1) shall be provisional and subject to confirmation after the procedure described in regulation 73. 5.18.0.6 Following the 2013 general elections, the first elections to be governed by the Elections Act of 2011, a presidential election petition was filed – Raila Odinga & 3 Others v IEBC & Others, Petitions 3, 4 & 5 of 2013. Raila Odinga’s petition was centred on electoral technology, particularly the failure of the transmission system and failure of the Biometric Voter Registration system (BVR). The IEBC contended that the use of technology was discretionary and that in the event of a failure of technology, it had been resolved to allow the persons in these special circumstances to vote, upon verification of their data. In ruling on the petition, the Supreme Court opined that: ‘It is not surprising that the applicable law has entrusted a discretion to IEBC, on the application BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION