Electoral agency sued over manual voter register
More hurdles have emerged in the electoral commission’s race to conduct the August 9 election after seven civil society organisations moved to court to challenge its decision to do away with the use of the manual voter register.
Independent Electoral and Boundaries Commission (IEBC) has stated that voter identification will be done electronically in the forthcoming elections and there will be no book with voters’ names at every polling station as has been the case in the past.
It means that voters have to use their finger prints as the primary method of identification in a method known as the biometric identification. Voters who fail will use their names or identity card numbers as alternative methods of identification. This is what IEBC calls alpha-numeric identification.
Those whose names will not be found will not be allowed to vote. In the past, electoral officials would have used the printed register – also called black book – to identify voters.
Now, however, the IEBC maintains that it will have sufficient back-up mechanisms to ensure all registered voters are identified and that no voter will be defranchised.
But the civil society groups say some Kenyans could be denied the opportunity to vote in the event of technology failure and the absence an alternative identification mechanism.
In a petition filed yesterday, the groups have asked the High Court to compel IEBC to restore the use of the manual register.
They are seeking an order that the commission “shall in the conduct of the General Election on Tuesday 9th August 2022 provide a manual register of voters in every polling station in Kenya to be used to identify voters in strict compliance with the provisions of Regulation 69(1)(e) of the Elections.”
IEBC on Monday said the manual register was in the past used to abet electoral malpractices, which will be addressed by a purely electronic system.
The civil society groups, however, said that absence of the manual register could bar eligible voters from exercising their right to cast their ballots either on account of lack of finger prints or technology malfunction.
“If there is nationwide or polling station technological failure, then affected Kenyans will not be able to exercise their political rights to vote in an election,” the petitioners said.
They now want the court to suspend the decision taken by IEBC and communicated by its chairperson, Wafula Chebukati, of not using manual register of voters as a complementary system in the general election.
Past rulings
There are just 46 days to the election, meaning the court may have to make a ruling that could drastically affect how the August polls are conducted.
They have also listed Attorney General Kihara Kariuki and the Communications Authority of Kenya as interested parties. The case has been filed by the Kenya Human Rights Commission, Katiba Institute, the International Commission Of Jurists -Kenya, Haki Yetu, Inuka Kenya Ni Sisi, Africa Centre For Open Governance (Africog) and Constitution and Reform Education Consortium. Some of the NGOs have filed similar cases in past elections, with courts making far-reaching verdicts that have influenced how elections were conducted.
IEBC officials have been citing the rulings they are complying with every time they make a decision likely to affect the conduct of elections.
The Civil Society groups say electoral technology is prone to failure and there is there is need for complementary backup.
While responding to questions by Azimio-One Kenya Coalition presidential candidate Raila Odinga when he presented his nomination papers on June 5, Chebukati had stated that IEBC would not use any manual register to identify voters at polling stations.
On Monday, Chebukati, who doubles up as the Returning Officer for the presidential election, defended the use of the digital register.
“From the 2017 post-election audit, we found out that most of the malpractices were out of the physical register. We believe that using the digital register will cut down on the malpractices where the presiding officers have knowledge of who has voted and who hasn’t,” he said. “Seven days to the elections, every polling station will have a copy of the register although it will not have all the details like the ID number, but the names will be there.”
Best bet
According to IEBC chief executive Marjan Hussein Marjan, the commission has enough back-up kits to be used in case one fails at any polling station.
“We have got more than 58,000 Kiems kits for each polling station and others for back-up. The digital register is the best bet according to me but the stakeholders should have the same level of comfort,” said Marjan.
Not everyone appears satisfied with that assurance. The petitioners, for instance, have said that the decision violates section 44A of the Elections Act, which requires a complementary system of voter identification, which, in their view, should be the manual register.
“The 2nd Respondent (Chebukati) arrived at the aforestated administrative decision in clear violation of the provisions of the law and in particular Section 44A of the Elections Act which provides for the provision of a complementary system of voter identification using the manual register of voters,” they said in court documents.
They have also argued that Article 83(3) of the Constitution provides for any administrative arrangements for registration of voters and conduct of elections shall not be used to deny a citizen the right to vote.
The lobby groups argue that in the 2013 and 2017 elections, IEBC admitted there was massive technology failure and the KIEMS kits were not functioning due to a myriad of reasons, including lack of power and lack of 3G network connectivity.
“Further to the decision of the Supreme Court in the 2017 Presidential Petition, IEBC has not taken any measures to guarantee that there is a working and reliable 3G/4G network connectivity and that technology shall not fail,” they say.
It is their case that in March 2022, IEBC issued a statement that 11,000 polling stations lacked 3G mobile network coverage and on June 8, commissioners stated that over 260 polling stations lacked 3G connectivity.
“IEBC and Chebukati admit that whereas we are 49 days to the general election, 1,111 polling stations do not have network connectivity; and they have shifted the blame to the Communications Authority of Kenya,” they argue.
What they have asked the court is to compel IEBC to have a manual register of voters to avert any risks associated with the failure of technology and Kiems kits.
“The decision of IEBC violates the provisions of the Statute on the use of a complementary system of voter identification and transmission of results,” they say.
