IEBC ordered to apply manual register in polls
The Independent Electoral and Boundaries Commission (IEBC) suffered a blow yesterday after a judge ordered it to ensure a manual voters register is available for use in all polling stations in time for elections on Tuesday.
The commission had earlier dismissed demands by Azimio-One Kenya Alliance for the register to be used alongside a digital one, which the electoral agency preferred.
High Court judge Mugure Thande directed IEBC to ensure both registers are available for the identification of voters.
It means IEBC has to print and distribute the registered voters' list over the weekend if it is to beat the Tuesday deadline.
Mugure faulted the commission’s decision to sidestep the manual register, saying the move was unconstitutional.
She said the law provides for a physical register to be used should an electronic voter identification device fail.
Supervisory powers
“With the IEBC’s decision not to use the printed voter register, there is a real risk of disenfranchising eligible voters. This court must, therefore, step in through its supervisory powers to ensure that the IEBC, though independent, operates subject to the law,” she said.
IEBC’s decision had the potential of having voters’ constitutional rights violated, she added.
“A declaration is issued that the decision of IEBC and its chairman, signified under a letter dated June 10, 2022, stating that the commission shall not use the manual register of voters in elections, is unconstitutional and the said decision is quashed,” the court ruled.
Mugure said IEBC had a constitutional mandate to take all necessary steps to ensure that all citizens’ rights under Article 38, as read together with Article 33 of the Constitution, are observed, respected, promoted and fulfilled.
“The IEBC has a constitutional mandate to take all necessary measures and administrative arrangements for the registration of voters and conduct of the election,” she said.
This includes the identification of voters during a general election, which the court said should be designed to facilitate and not deny an eligible citizen the right to vote.
Yesterday’s intervention by the court will come as a victory for the Azimio-One Kenya coalition, which had fiercely fought IEBC’s decision to only use KIEMS kits to identify voters for Tuesday elections.
The party’s main rival, UDA, had said it had no problem with electronic voter identification.
In recent weeks, the type of register to be used has been a sticking point in the campaign exchanges pitting the leading presidential candidates in Deputy President William Ruto of UDA and Raila Odinga of Azimio who had accused the electoral commission of violating the law by failing to print a register despite doing so in previous elections.
Last month, Raila warned that there would be no elections without a manual register. “It is not negotiable; a manual register is a must, along with the electronic register, otherwise no manual register, no elections,” he said during a campaign rally in Kiambu.
He, however, later said the ultimatum did not mean he would boycott the elections.
Ruto, on the other hand, said his party did not have any problem with a digital register only, noting that the manual one could be easily abused.
The IEBC’s decision to strictly rely on KIEMS kits to identify the 22.1 million registered voters during the polls was based on fears of possible abuse of the physical register, which the commission’s CEO, Marjan Hussein Marjan, said could be a conduit for electoral malpractices.
Evaluation report
The commission has been of the view that an electronic voter register would frustrate any attempt to rig the elections IEBC chairman Wafula Chebukati said the commission abandoned the printed register based on the findings of the Post-Election Evaluation report for the 2017 General Election and the subsequent repeat presidential elections.
The report established that the use of the printed register provided an avenue for possible misuse during the voting process.
“In an attempt to ensure that such misuse does not occur and to enhance the credibility of the voting process, the commission decided to bar the use of the printed register,” said Chebukati.
The aim of the commission was to ensure that all voters were strictly identified electronically using their captured biometric data. UDA, while opposing the suit by seven civil society groups, told the court that by law, IEBC was only required to establish a complementary mechanism for the identification of voters.
“A complementary system is not tantamount to the substitution of the use of technology. The complementary mechanism steps in to accommodate the voters with poor biometrics and those not registered through the biometric systems,” said UDA secretary-general Veronicah Maina in an affidavit filed in court.
The civil society groups had accused the polls agency of setting itself up for massive failure by conducting elections without a physical voters’ register.
Technological failure
“Technology is bound to fail in some polling stations, if not all, thus curtailing Kenyans’ right to vote due to lack of voter identification. The decision to abandon the use of the manual register will bar eligible voters from exercising their right to vote, either on account of lack of fingerprints or technological failure,” they said.
The petitioners were the Kenya Human Rights Commission, Katiba Institute, Kenyan Section of the International Commission of Jurists (ICJ), Haki Yetu, Inuka Kenya, Ni Sisi Limited, Africa Centre for Governance, and Constitution and Reform Education Consortium.
