Why IEBC rejected ‘none of the above’ ballot paper option

The Independent Electoral and Boundaries Commission (IEBC) has opposed a suit seeking to have a ‘none of the above' option on the ballot paper.

IEBC CEO Marjan Hussein Marjan, through lawyer Kipkoech Ng’etich termed the suit by Boniface Mwai frivolous, mischievous, lacking in merit and grossly incompetent. The petition, he said was brought purposely to annoy the commission, and even worse, the court.

In the suit, Mr Mwai argued that the addition of ‘none of the above’ option will provide “360-degree options” for voters. He wants the court to compel the electoral agency to introduce the option on ballot papers, starting with the 2022 General Election.

Voters who do not wish to vote for any of the candidates, he said, will exercise their rights to reject them without violating the secrecy of their decision.

“None of the above is an option on a ballot that allows a voter to not vote for any of the running candidates,” Mwai said in the petition.

IEBC, however, argued the Constitution does not contemplate a situation where one goes to a polling station to abstain from voting.

“Abstinence, however, is not forbidden. An eligible voter can decide not to vote for any category of candidates,” read the reply in part.

Marjan said Mwai's petition has not stated under which provision of the Constitution the right not to vote for any candidate demands one to cast a vote against all candidates. The option of ‘none of the above’ included in the ballot, he said, is not founded on any law in Kenya.

“It is a strange concept in our jurisdiction. Even worse, it should be founded on legislation,” he added.

The CEO said there are no formal procedures in place that would address situations where the ‘none of the above’ receives a plurality of the votes, and so winning the elections. He noted that in other countries that have a ‘none of the above’ option, India for example, in the event of a ‘none of the above’ ‘wins’, the candidate or party polling the next highest number of votes would be allowed to take office regardless.

“Clearly, this renders the option meaningless, as a ‘none of the above’ 'win' would indicate that more voters actively rejected all the available candidates than endorsed any one of them. It, therefore, makes no sense for the next placed candidate or party to be elected,” read the reply in part.

Mwai, he said, approached the wrong avenue as it is the role of Parliament to legislate and not the court.

IEBC said Mwai could choose to decline to vote for any candidate and leave the ballot completely blank as a sign of protest and sending a message to politicians that he is unhappy, either with their behaviour, or with the options available.

The case will be heard on June 23.