Raila Odinga’s big win in battle over manual register
Azimio la Umoja One Kenya Coalition candidate Raila Odinga.
Azimio la Umoja One Kenya Coalition candidate Raila Odinga Thursday won big after the High Court ordered the use of a manual register as backup in the Tuesday General Election, reversing the electoral agency’s decision to use an all-electronic voter identification system they said was to curb irregularities.
Mr Odinga had been pushing for the use of the manual register, insisting that the move by the Independent Electoral and Boundaries Commission (IEBC) to phase it out was unconstitutional.
Justice Thande Mugure, in a ruling in a case filed by human rights groups, found that the decision of the IEBC to abandon the printed register violates the Constitution, which provides that where an electronic voter identification device fails, then use of a physical register would suffice.
On IEBC’s insistence that only the electronic register, popularly known as the Kenya Integrated Election Management System (Kiems) kits will be used during the polls, the judge asked what will happen if a voter’s details cannot be picked by the kits.
The decision of the commission to strictly rely on the Kiems kits to identify the 22.1 million registered voters during the polls was based on fears of possible abuse of the physical register.
All-electronic voter register
Its decision was backed by Deputy President William Ruto’s United Democratic Alliance, which said an all-electronic voter register to identify voters would avert any rigging attempts.
The decision by the courts yesterday means that all voters’ names have to be physically crossed out in the printed register — whether or not they are identified electronically.
“Before issuing a ballot paper to a voter, an election official shall require the voter to place his or her fingers on the fingerprint scanner and cross out the name of the voter from the printed copy register once the image has been retrieved,” Elections Act Section 69 (1) (d) states.
Important safeguard
Mr Odinga had insisted that the crossing out of names in the physical register was an important safeguard in the voting process.
“When a name is keyed into a Kiems kit and approved, how does the public, through the agents of the candidates, know the integrity of the identification if a physical register is not available for them to witness the name of that voter being traced on paper that cannot be tampered with after election?” Mr Odinga told the commission through his lawyer, Mr Paul Mwangi.
He went on: “When a name pops up on the Kiems kit, how does the public know that the Kiems kit is talking to the official voter register and not another database?”
In their complaints, Mr Odinga’s team had protested the exclusion of the register, saying it could provide an avenue for manipulation, describing it as “a dangerous tool in the hands of anarchists.”
“Imagine if on August 9, 2022, other saboteurs compromise Kiems kits in the strongholds of one candidate and the 11,000 (backup) kits cannot be marshalled effectively to the challenge areas; or are simply inadequate to meet the challenge. Without the physical register to immediately fall back on, the election will fail in those areas,” countered Mr Odinga.
Absentee voters
The IEBC had claimed that the printed register, which discloses national identity numbers of a voter among other details, has previously been abused to facilitate voting by absentee voters.
As a result, it had intended to restrict the availability of the printed register to specific situations where a voter cannot be identified using their biometrics or alphanumerically and only with the written authorisation of commissioners. The judgment means that before voting the voter will be required to be identified either electronically or manually and the polling clerk will have to cross out the name of the voter from the printed register.
Constitutional lawyers observed that although the court’s judgment has the potential of disrupting the IEBC’s preparedness for the polls, it will also enhance accountability, prevent possible ballot stuffing and ensure no voter will be locked out by technology.
They said IEBC will have to be extra vigilant to curb the old election irregularities associated with the use of printed registers.
According to lawyer Charles Kanjama, the electoral commission will have to train its staff on use of the printed register.
“Late court directives to IEBC may disrupt electoral arrangements, including training of election officials, customisation of gadgets and setting up of processes,” said Mr Kanjama.
This is because the election preparations and training of clerks was based on the knowledge that only the Kiems kits, not the physical register, will be used to identify voters.
“If the judgment is not stayed on appeal, IEBC will need to work extra hard to deploy and supply printed voter registers, monitor their use, curb avenues for ballot-stuffing and facilitate voters to deliver free and fair elections,” stated Mr Kanjama.
No voter will be locked out
Mr Jackson Awele, another constitutional lawyer, said the court’s judgment means no voter will be locked out if the electronic system fails to validate his or her details during voting.
Yesterday, UDA hairman Johnson Muthama welcomed the decision, saying it will guarantee that no voter is disenfranchised.
“It is always good to have a second option. Unless an appeal is made, we will abide by the court’s ruling,” Mr Muthama said.
IEBC chairman Wafula Chebukati had said that the commission abandoned the printed register based on the findings of the post-election evaluation report for the 2017 General Election and fresh presidential elections.
Avenue for misuse
It was established that the use of the printed register of voters provided an avenue for misuse during the voting process.
On its part, UDA told the court that IEBC is only required to establish a complementary mechanism for identification of voters, which mechanism has been fully adapted and incorporated into the election process for the identification of voters and transmission of election results.
“A complementary system is not tantamount to substitution of the use of technology. The complementary mechanism steps in to accommodate the voters with poor biometrics and those not registered though the biometric systems,” explained UDA secretary-general Veronica Maina.
But Justice Mugure, in her ruling, noted that the electronic kits may fail to function over challenges related to technology, hence the need for a complementary manual system.
