I.E.B.C. MUST BE HELD ACCOUNTABLE FOR DIASPORA VOTING FOLLIES & OTHER ELECTION MISHAPS.

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By David Ogega

As Kenya’s general elections scheduled for August 9 enter the homestretch, many Kenyans are anxious of how the Independent Electoral & Boundaries Commission (IEBC) will conduct the elections. Already alarm bells are on high decibels about the commission following the latest revelation that it illegally transferred voters from their assigned polling stations, IEBC owns up to illegal transfer of voters ahead of August polls | Nation. IEBC’s notoriety for dysfunction over the years is well documented and so are the attendant consequences not the least of which is the infamous 2007-2008 Post-Election Violence (PEV) that brought Kenya to the brink of civil war and resulted in thousands killed and hundreds of thousands more displaced after it bungled the results tallying of the presidential contest between then incumbent president the late Mwai Kibaki and Raila Odinga. Truth be told the IEBC is a poisoned chalice that has perennially precipitated electoral chaos in the country for years and yet it is the ordained custodian of democracy in Kenya, its dysfunction is an evil that we have all learned to live with, but it needs to come to an end, sooner rather than later. That reforms of the IEBC’s are overdue is an understatement and this is best underscored by the recently bangled Diaspora voter registration that was, simply put, an unmitigated disaster. The Commission’s conduct during the exercise was a debacle, a fiasco for which there cannot be a valid excuse. It was a combination of sheer incompetence and planned failure that not only exposed the commission’s deeply entrenched malfeasances but also rendered Kenyans in the Diaspora arguably the hardest hit victims this election cycle. Added in the list of follies is the waste of limited resources from the donor community and taxpayers alike.

Kenyans in the Diaspora were beguiled by smooth talking commissioners led by Chairman Wafula Chebukati who, along with CEO Marjan Hussein Marjan, in August of 2021 at the annual Kenya Diaspora Conference in Seattle Washington, announced that the commission has expanded its Diaspora voting to include six (6) additional countries i.e., the United States, England, Qatar, Canada, Germany and South Sudan. Many of us were genuinely exuberant that finally we will vote in the August 9 elections in large numbers and make a meaningful difference of the outcome; that universal suffrage in the form of the ballot box that has eluded us for years was finally within reach but sadly that was not to be. You see after multiple court rulings compelling the Commission to register the Diaspora to vote and years of direct lobbying by the Diaspora themselves, the commission finally relented and in August of last year. We were elated by the Commission’s announcement, but our exuberance was short-lived. Despite the commission’s promises to bring voting to the Diaspora, there is no shortage of adjectives to use to describe what followed because theirs turned out to be a choreographed charade, a brazen hoax, the biggest and costliest intentional prank perpetrated on the Diaspora. a sham, and that’s putting it mildly. And for that, many Diasporians directly affected by IEBC’s malfeasances strongly feel and advocate for top-down reform of IEBC, a complete overhaul of the commission to restore confidence to Kenyans that the country’s electoral body can function properly and run an election to secure the country’s democracy, it is too important to leave to the Commission’s whims. For the Diaspora it turned out to be voter suppression and disenfranchisement; those in Kenya now also must contend with unlawful voter transfers that threatens democracy that much more. Something must be done to secure Kenya’s democracy as the country’s survival depends on this fundamental tenet of governance.     

Waste of Resources and depriving Kenya Revenue – Whether by design, or sheer incompetence or both, IEBC’s conduct of diaspora voting this election cycle is a needlessly massive financial drain not just on the country’s economy but also to the Diaspora who traveled to embassies and consulates to register, the country’s economy as well as donor agencies whom the Commission relies on for support of their functions. The Commission’s inefficiency is painfully obvious; its own records show that it registered less than 10,000.00 voters of the estimated 1,000,000.00 plus Kenyans outside Kenya, that is less than 0.01%. You do the math, the cost per registration is extremely exorbitant, needlessly. The amount spent in travel, daily per diems, and allowances of the tens of its agents is estimated at one (1) million US dollars which should have resulted in tens of thousands of voter registrations but instead the outcome was paltry at a cost of more than $1,000.00 (KSH 110,000.00) per voter registration, all because IEBC REFUSED, yes, REFUSED, to follow the law and to work with Diaspora organizations to make the initiative successful. Voter registration is largely a clerical exercise; a three-step process where staff help applicants fill a two-page biometrics form, take applicants fingerprints with the Biometrics kit, the form and applicants’ ID are scanned into the kit, staff issues the voter card and that is practically the end of the process, about 5 minutes in total. Kenyans in the Diaspora volunteered to conduct the exercise at no charge, but IEBC refused and expended tens of Millions of shillings needlessly.

So, what went wrong in the Diaspora? You may ask, and the answer is very simple. IEBC made a conscious and deliberate decision to disenfranchise the Diaspora community by suppressing their vote, pure and simple. Theirs was tokenism at a very high cost to the county and the Diaspora. There is no other way to describe what the IEBC did. There are not enough adjectives to describe what happened to us; we were snookered, bamboozled and it was all by design. IEBC had absolutely no intentions for the Diaspora to have any meaningful participation in the elections and their actions demonstrably betrayed their feigned intent. Specifically, IEBC, acting as the law unto itself, without cause or justification, made three incurable declarations that shut the door to majority Diasporas’ access to the ballot: i) IEBC, using a spurious, i.e.,  non-existent “law” that they invented, arbitrarily severely limited the number of voter registration and polling stations to between one (1) and no more than (3) in vast countries such as the US by declaring that the Diaspora can only register and vote at embassies, high commissions and consulates -effectively ensuring majority of voters cannot access those centers. r; ii) a requirement that passports will be the ONLY form of identification the commission will accept for purposes of voter registration and voting, the effect of this requirement excluded government issued national IDs; iii) IEBC severely limited the voter registration period to two weeks (14 days).

Immediate remedial action is necessary but let’s start with how and why the IEBC got this wrong by reviewing its actions one by one:

ONE (1)

Insufficient Polling Stations & Centers – According to the Elections Act, 2011 § 38A, the IEBC is required to conduct efficient elections by limiting the number of voters assigned per voting station to a maximum of 700, in other words, the Act explicitly prohibits the commission from assigning more than 700 voters per polling station. It reads in pertinent part, “For the purposes of providing efficient and effective conduct of elections, the number of voters per polling station shall not exceed seven hundred.” In plain language the import of this statute is that the commission is REQUIRED to establish enough registration and voting stations in the countries they have expanded voting to comply with the textual provisions of the law. In the United States for example, with an estimated 250,000 eligible voters the commission should have established 357 registration and voting stations to comply with this legal requirement. It is NOT permissible for IEBC to flout the law so flagrantly by setting up just three stations in the US i.e., the Kenyan Embassy in Washington, DC, the two Consulates in New York City and Los Angeles respectively; these stations are statutorily constrained to merely 2100 voters leaving out hundreds of thousands of others in a lurch. We are acutely cognizant of the practical impediments to setting up 357 stations and the need for a reasonable balance, 15 to 20 in stations would be reasonable and suffice. IEBC declined all repeated requests to meet us in the middle. All else being equal, IEBC’s conduct, left undisturbed, effectively suppresses the Diaspora vote, and will disenfranchise hundreds of thousands of eligible Kenyan voters.

2017 Precedent – The only resolution to this is for IEBC to secure the democratic rights of Kenyans in the Diaspora by granting them unfettered access to voter registration and polling stations by designating additional stations and centers in the countries they will conduct elections. This is not a foreign concept; in 2017, in neighboring Tanzania, the Commission was headed by current chairman Wafula Chebukati when it designated and gazetted a non-diplomatic installation, a hotel or and conference center in Arusha, Tanzania as a registration and polling station. IEBC, on its own set the precedent then and it is dutybound to maintain it now as a matter of law. It was the right, legally permissible thing to do then, and it is now as well. No legal challenges were launched against the commission for designating a non-diplomatic location as an election center nor were votes cast thereof invalidated.

Inaccessible locations – The locations the Commission designated as polling and voting stations are inaccessible and impractical venues for voter registration and voting. They are a logistical nightmare to reach in an ordinary day let alone for elections, they are in the middle of large cities very limited parking and limited to no public transportation networks to speak of. The IEBC simply did NOT care to assess the logistical challenges inherent in these locations. Instead, as stated elsewhere in this submission, the commission unilaterally and arbitrarily chose these locations based on a self-generated Regulation 34(2) of the Elections (registration of Voters) Regulations 2012 that IEBC claims provides as follows “A decision by the Commission to register Kenyan citizens residing outside Kenya or to conduct elections outside Kenya shall be based on the presence of Kenyan embassy, High commission or Consulate.” The problem is that there is no such provision in the constitution or statute, it is an uncodified, obscure self-generatedrule that IEBC invented that effectively arrogated the commission as the law unto itself while substituting the real law. Again, just to be clear, no such law designating and limiting voter registration and voting to embassies and consulates exists in Kenya, NONE.  Even if for argument’s sake we grant the commission’s argument as valid, conducting elections in countries where Kenya has diplomatic relations does NOT mean or require those elections to be held at the diplomatic posts, there is no such requirement in law or elsewhere but an intentional conflation by the commission to suppress the Diaspora vote. There is zero correlation between diplomatic presence and polling & voting stations, ZERO.  Additionally, the constitution is supreme and preempts both statutory law and any regulations formulated by agencies such as IEBC, and yet the IEBC subordinated both the constitution and statutory law to fit its whims in this instance; in other words, the IEBC is an independent constitutional agency, it is not the law unto itself, its regulations are subordinate to, and subject to the constitution and statutory law.Nowhere in the Act or the cited regulation does it direct, infer, restrict, or instruct the Commission to designate Embassies, High Commissions or Consulates as the ONLY venues for voter registration and or polling.

(TWO) 2

Passports as ONLY form of IDs – In yet another assault on the Diaspora’s democratic rights the IEBC decided that Passports are the only form of ID they will accept for registration and voting purposes. Rumor has it that the Commission took it upon itself to exclude dual citizens from the voting process and that the best way to sift through the potential voters and exclude dual citizens was to require passports only as a form of identification they will accept. Again, this was patently unlawful on IEBC’s part, Section 2 of the Elections Act defines identification document plainly as follows: “identification document” means a Kenyan national identification card or a Kenyan passport. Indeed, the standard of all Kenyan elections from time immemorial has been the use of these two sets of documents as acceptable forms of IDs for election purposes. Elections Act § 5 (3) states, “any citizen of Kenya who has attained the age of eighteen years as evidenced by either a national identity card or a Kenyan passport and whose name is not in the register of voters shall be registered as a voter upon application, in the prescribed manner, to the Commission.” Perhaps this is a moot point now because the High Court, in an emergency application filed against the Commission, ruled against the commission, and ordered it to accept national IDs alongside passports as forms of identification from the Diaspora for voter registration and voting purposes. They complied with the order but for the fact that by the time the court order was issued the commission had almost concluded its self-imposed short registration timeline. The reason this is even an issue now is to demonstrate how pervasive the ever-recalcitrant IEBC’s overreach, misuse and abuse of its authority and its adverse effects on democracy is. It cannot be that a constitutional body charged with securing and safeguarding democracy is in fact the one stifling it, this MUST remedied forthwith.

THREE (3)

IEBC severely limited the voter registration period to two weeks (14 days) – The IEBC decided to limit the voter registration period to just 14 days. The elections Act § 5 (1) decrees that the respondents must continuously register voters until 60 days immediately before election day. Section 1 reads in pertinent part, “(1) Registration of voters and revision of the register of voters under this Act shall be carried out at all times except— (a) in the case of a general election or an election under Article 138(5) of the Constitution, between the date of commencement of the sixty-day period immediately before the election and the date of such election.” The Chebukati team has never given reasons why they restricted voter registration to only 14 days for voter registration.

Conclusion – Bottomline is the IEBC needs reforms desperately, it is long overdue and whether that means reconstituting its management or disbanding it altogether, so be it. The sooner this happens the better all of us will be and so I call upon those in position of authority to act as soon as it is practically possible and clean up the mess at the IEBC, enough is enough.

The writer is a vocal Diaspora leader who constantly advocates for the rights of those in Diaspora and Kenya.

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