In the last days before Kenya’s August 9 elections, the high court made a crucial intervention: the country’s Independent Electoral and Boundaries Commission (IEBE) was ordered to permit the use of the manual voters’ register as a backup to its electronic system.
The presiding judge, Mugure Thande, also set aside the decision of the IEBE, contained in a letter from the commission, to the effect that the manual voters’ register was barred and could not be used to identify voters.
A group of seven petitioning organisations, focused on good governance, human rights, law and the constitution, had asked the court to consider the controversial letter. It was written by the national returning officer of the IEBE, Wafula Chebukati, in response to a concern raised by Azimio, one of the parties contesting the election.
In his letter, Chebukati made it clear that the commission ‘decided to bar the use of [a] printed register to ensure that all voters are strictly identified electronically using their captured biometric data and to eliminate the possibility of identification of voters using the printed register.’
The petitioners said they were worried that the decision taken by the IEBE on the use of the manual register as a backup, namely to ‘completely abandon’ its use, was against the law and ought to be set aside.
It contravened the rights of registered voters, they argued, along with voters’ legitimate expectation that the elections would be conducted ‘in strict compliance with the electoral law’.
Chebukati and the commission said the complaint was based on a ‘hypothetical scenario’ and a ‘misconception and misapprehension’ about the ‘role of technology in the identification of voters’ at the polls. It should be dismissed, with costs, he said.
In his judgment on the question, Judge Thande said that while the Elections Act provided for the use of technology in the whole election process, technology ‘can and will fail, and did indeed fail in the 2013 general elections’.
In fact, he recalled that the supreme court, reflecting on those elections, had written, ‘It is common ground that even the best technology can fail; it was also admitted that in the conduct of the 2013 general elections it largely failed’.
Following those problems with the 2013 elections, parliament passed a new provision instructing the IEBE to put in place a ‘complementary mechanism’ to identify voters, that was ‘simple, accurate, verifiable, secure, accountable and transparent’.
Chebukati and the IEBE, however, referred to the findings of the post-election evaluation report for the 2017 elections in which, said the IEBE, ‘it was established that the use of the printed register of voters provided an avenue for misuse during the voting process.’
It was in response to that finding of problems caused by the misuse of the printed register, that the IEBE had decided ‘to bar the use of [a] printed register’ and to use only electronic means to identify voters in the 2022 elections.
The system that would be used was the Kenya Integrated Elections Management System (the KIEMS-Kit). And the dispute between the two sides was over whether the KIEMS Kit was adequate or whether there should be a complementary system, in the form of a printed register of voters, to protect the rights of those whose details didn’t appear in the KIEMS-Kit.
Quoting earlier court decisions on the need for a back-up system where the electronic method of managing voter identification failed, Judge Thande said the court had ‘inevitably’ to hold that the IEBE decision ‘to abandon the use of the printed register of voters’ was a violation of the constitution, as well as the law and the relevant regulations.
Did the court have the power to ‘direct’ the IEBE to use the manual register to identify voters? Counsel for the commission said it did not have this power and that the commission had to be allowed to operate independently.
True enough, the commission was independent, said the court. But it was only free to exercise its mandate ‘as long as it is within the law.’
The commission had to be free to exercise its discretion, with the only caveat being that it was subject to the constitution and the law. ‘It follows therefore that failure [of the commission] to heed the provisions of the constitution and the Elections Act’, along with its regulations, in making any decision, ‘would render such decision unlawful and open to attack.’
In this case, the court had found a violation of the constitution, for what would happen to a properly registered voter whose details couldn’t be found in the KIEMS-Kit because of a technological failure, or any other reason? The commission’s decision to bar any fall-back to a printed register meant the commission had ‘failed to make administrative arrangements’ for the conduct of elections, that were designed to facilitate – rather than deny – an eligible voter’s right, as required by the constitution.
‘Where it is proved, as it has [been] in the present case, that an independent commission has deviated from and acted outside the parameters of the law, the court will step in.’
Here, the commission had made a decision that violated the constitution and the law and as a result of the decision there was a real risk of disenfranchising eligible voters. The court had thus to step in and ensure that the commission, though independent, operated subject to the constitution and the law. It had to ‘fashion appropriate reliefs to ensure that the rights enshrined in the constitution are protected and enforced.’
The court therefore issued a declaration that Chebukati and the commission had a mandate to take all steps necessary to ensure that citizens’ rights to vote were respected. A second declaration was issued that Chebukati and the commission had to ensure that administrative arrangements for the registration of voters and the conduct of elections, ‘including the identification of voters during the August 2022 elections’ were designed ‘to facilitate and not deny’ the right to vote in the election.
The court further declared that the decision of the commission, contained in the dispute letter, to the effect that the manual register of voters was barred from use in the elections, was unconstitutional and set aside.
- ‘A matter of justice’, Legalbrief, 9 August 2022