The Independent Electoral and Boundaries Commission (IEBC) has controversially suspended the enlisting of new voters until September 6, a month after the general election. It is to be doubted if this was legal – and if it will be challenged by anybody in court.
In a Kenya Gazette notice dated February 23, the chair Mr Wafula Chebukati says: “The IEBC gives notice that the application for new registration and change in registration of voters in Kenya and for Kenyan citizens living outside the country shall be suspended from March 7, 2017, and to be reopened on September 6, 2017.”
The IEBC says the decision to suspend the registration of voters is in line with Articles 83 ,and 88 of the Constitution, sections 5 and 8 of the Elections Act and the Regulations Sec. 13, 14 and 15 of the Elections (Registration of voters). Constitution of Kenya 2010
The IEBC while suspending the voter listing further said the break is necessary to allow it audit the register and allow for its verification in order to have a proper election on August 8.
But let’s look at what the sections of law referred to by IEBC says:
Article 83 of Constitution sets out the conditions one has to meet to be registered as a voter while 86 requires IEBC to ensure elections are free and fair. But there is no mentioning of any powers of the IEBC to change the constitutional timelines with regard to continuous voter registration.
Section 5 of the Elections Act even emphasizes that voter registration is continuous except in the circumstances it sets out. And that section says registration during the general election ends only 60 days to the elections date – not four months as the IEBC has now decided.
Section 8 Elections Act on the other side requires the electoral commission to update and review the register of polls where necessary. The Elections Act
No section of the law cited above expressly gives IEBC powers to suspend voter listing. The purported powers IEBC claims to draw from above sections of the law are non-existent. It should be pointed out that any Kenyan can move to court to challenge the move by the electoral body.
Many potential voters holding ID cards could be locked out of participating in the polls unless the free on voter registration is revoked.
The suspension of the voter listing drive is equally against a court order issued requiring IEBC to continue with the registration of new voters until May 17, exactly 60 days to the August 8 General Election.
According to the law, voter registration is a continuous process. The law just allows for a 60 day break before the date of a general election. The voter listing exercise is supposed to remain ongoing in all IEBC constituency offices and Huduma centres countrywide. Voter registration is continuos
The process of audit and verification of the register can be done within the 60 days after May 17 as was granted by the court. The register is usually open for verification for 14 days only.
The register was supposed to be audited by an external firm but identifying a reputable organization to do the audit has been dodged with a lot controversy. Opposition parties rejected an earlier firm that had been picked for lack of experience.
The IEBC should do everything possible within the law to ensure the elections are free and fair. Disfranchising Kenyans would wish to vote in the elections by closing the voter registration window early is against the law. It can be a basis for one challenging the outcome of the polls.
According to Section 5(1) (a) of the elections Act, every adult Kenyan citizen has the right to register to vote until 60 days before the election date. The Elections Act
The IEBC from the very onset wanted voter registration to end with the mass voter registration that was to end on Feb 14, 2017 before a voter moved to court prompting an extension.
The advertisements and press releases it was giving were creating an impression that the voter listing ends with the mass voter registration.
The argument put forward by IEBC for the early closure of the voter registration are not convincing. It’s worthy noting that even diaspora voter registration as envisioned the voter registration regulations 2012, have not been adhered to.
Also affected in the suspension are those that want their polling stations changed and Kenyans living in the diaspora.