Court directs IEBC to provide manual register in next week's polls

IEBC Chairperson Wafula Chebukati at the Safari Park Hotel in Nairobi on July 29, 2022. [David Gichuru, Standard]

The High Court on Wednesday directed the Independent Electoral and Boundaries Commission (IEBC) to provide a manual register during the August 9, 2022 General Election.

Justice Thande Mugure of the Milimani Law Courts in Nairobi said the manual register will complement the electronic voter-identification register.

The judge also stated it was unconstitutional to rely only on the digital directory, as that risked locking out voters whose details can't be retrieved from the digital repository.

This judgement comes on the back of a continued push by the Azimio la Umoja-One Kenya Coalition Party to have a manual register incorporated in next Tuesday's polls.

On the flip side, the verdict by Justice Mugure dealt Deputy President William Ruto's party UDA a major blow after it was advocating for the use of electronic registers only on August 9.

"What happens to a registered voter whose details cannot be picked by the KIEMs kit for fault or failure of technology? If this decision remains unchallenged, there is no doubt that voters' constitutional rights to vote will be violated," said Justice Mugure.

She continued: "The first respondent has failed to make administrative arrangements for the conduct of election to facilitate and not deny an eligible citizen the right to vote as required by the Constitution."

The judge asserted that IEBC had violated the Constitution and its own internal memo on the use of both registers.

According to her, abandoning the manual register would amount to throwing the baby and its water. She noted that no electronic device is foolproof, impenetrable, or incorruptible.

"As a result not of the decision of the first respondent, there is a risk of disenfranchising a registered voter. In its answer to Azimio, the first respondent did not make any rule on the failure of technology. It said that the kits do not require internet for the purposes of identification. This may as well be true but data in devices does and is corrupted or interfered with by criminals and the voting process is no exception," said Justice Mugure.

In the case, Attorney General Kihara Kariuki backed a bid to compel the commission to use both electronic and manual voter registers for identification.

In his submissions, the AG faulted IEBC for indicating that it will not use the manual register to identify voters in the event the electronic voter identification kits fail.

"It is our humble considered opinion that the decision by the first and second respondents (IEBC and Wafula Chebukati) to completely avoid the use of printed/manual register as a complimentary system provided for under section 44 A of the Election Act is a move that goes to offend the spirit of the constitution as well as the letter of the same," the AG's lawyer Dan Weche replied.

AG, who is a government advisor, has taken the position of Azimio la Umoja-One Kenya alliance that IEBC should use both electronic and manual registers for the identification of voters.

His stand on voter identification is different from that of the United Democratic Alliance (UDA) which backs the use of electronic voter register only.

In its argument, the Deputy President William Ruto-led party explained that there is a likelihood of returning officers voting for persons who do not appear to cast their votes in the event the IEBC relies on printed voter registers.

UDA's lawyer Elias Mutuma argued that instead, there should be a truncated voter register, which should only be used as a last option and with the authority of the commission.

A truncated register, he said, should have some details concealed in order to make it impossible for other persons other than the intended ones to vote.

The lawyer urged the court to dismiss the case.

"IEBC has put in place adequate complementary mechanisms for voter identification. There is alphanumeric identification, a truncated register, and a list posted on the polling station. A truncated register conceals some of the details of a voter register. This is because previously, rogue officers would vote on behalf of those who did not," argued Mutuma.

The AG and UDA were responding to a case filed by seven lobby groups. The petitioners were Kenya Human Rights Commission (KHRC), Katiba Institute, Kenyan Chapter of the International Commission of Jurists (ICJ)-Kenya, Haki Yetu, Inuka Kenya Ni Sisi, Africa Centre for Open Governance (Africog), and Constitution and Reform Education Consortium.

According to court documents, IEBC admitted that at least 1,111 polling stations lack 3G mobile network coverage.

"Further to the decision of the Supreme Court in the 2017 Presidential Petition No 1 of 2017, the first and second respondents have not taken any measures to guarantee that there is a working and reliable 3G/4G network connectivity and that technology shall not fail," said Limo.

"The first and second respondents have not implemented the 2017 Supreme Court judgment at all."

According to civil society groups, the kits can only function when connected to a reliable network. At the same time, the identification of a voter can only be done using either a fingerprint or an alphanumeric search.

The petitioners said that fingerprint identification cannot work for voters with distorted fingermarks and or those who have no fingers.