Six organizations now sue IEBC over voter register

A group of civil society organisations has drafted a petition, challenging IEBC Chairman Wafula Chebukati’s decision to bar use of physical voter registers in the August 9th general election as a solution to electoral malpractices unearthed in the 2017 polls.

In the petition, Chebukati, IEBC and Attorney General Paul Kihara Kariuki are listed as respondents, with the Communications Authority of Kenya (CA) dragged into the legal contest as an interested party.

At the heart of the petition is Chebukati’s administrative directive eliminating use of manual voter registers in the looming polls across the 46,232 polling stations.

“As a result of the 2017 post-election evaluation, most of the malpractices were as a result of the physical voter registers. We believe that using the digital registers will cut down these malpractices where a presiding officer has knowledge of who has not voted, their ID numbers and is therefore able to input their details in the KIEMs kits, allowing malpractices to happen,” said Chebukati.

According to the petitioners, Chebukati’s decision was a violation of Section 44A of the Elections Act on requirement for a complementary system of voter identification.

The act requires such a mechanism to be simple, accurate, verifiable, secure, accountable and transparent.

The petitioners hold that digital identification of voters through the integrated elections management system devices could suffer massive technological failures, as was witnessed in 2013 and 2017 general elections, and end up denying the electorate an opportunity to exercise their democratic rights.

IEBC, during a news briefing on the 2022 voter register, insisted on electronic mode of voter identification to curb electoral fraud.

“According to me, this electronic identification will be the best way of preventing someone winning when they are not supposed to be wining in the first place,” said IEBC CEO Hussein Marjan.

“Some of the illegal transfers we are talking about, the ones that were reversed, they will not vote but if we were not talking about this, in areas where these transfers have occurred, you will see 90 to 100% voter turnout.”

The commission’s argument for a clean electoral process notwithstanding, the petitioners insist that Chebukati’s administrative action violates Article 83(3) of the Constitution, that requires IEBC to ensure any decision made shall not deny eligible voters their day at the ballot.

Chebukati’s directive, according to the petitioners, can lead to postponement of the August 9th general election should there be mass failure of the devices deployed across the polling stations to identify voters electronically.

Manual voters registers, according to the petitioners, was a safer complementary system to the digital registers, an argument IEBC differs with.

“The register that is appearing in the KIEMS kit, when a voter comes and is identified, that record is archived, you can’t come again and be identified to vote again. In physical register, it depends on the level of collusion, one can strike out several times a voter who has already voted,” added Marjan.

In the run up to the 2017 general election, a three-judge Court of Appeal bench upheld a High Court decision ruling that it was not possible for IEBC to conduct an exclusively electronic exercise due to the possibility of systems failure and the consequences of such a technological challenge.

The system’s susceptibility to hackers, election officials’ technical incompetence or power outages that could lead to data loss among considerations made by High Court Judges Kanyi Kimondo, Alfred Mabeya and Hedwig Ong’udi in arriving at their verdict dated July 21, 2017.

The commission plans to reach out to stakeholders to resolve the complementary voter register dispute.

“Perhaps a date can be set for this conversation before we print the ballot papers so that we can have a further engagement on this,” stated Chebukati.