By Wafula Wakoko
Elections encompass processes through which people who meet basic requirements select representatives. Owing to the gravity linked to donation of one’s power, international best practice dictates that all persons who qualify to vote should be facilitated to participate in elections. In tandem with the aforestated, the Constitution of Kenya stipulates that adult citizens are entitled to vote. Pragmatically, however, not every Kenyan adult who qualifies to vote is accorded that opportunity due to lack of identification documents.
Entitlements of citizens
By dint of Article 12 of the Constitution, every citizen is entitled to, inter alia, the right to citizenship, which include entitlement to a Kenyan passport, and any document of identification issued by the State to citizens. The documents envisaged include a certificate of birth, a national identity card and a Kenyan passport.
The right to register as a voter
In terms of provisions of the Constitution and the Elections Act, 2011, the right to be registered as a voter and cast a ballot in an election or referendum is a preserve of adult citizens subject to reasonable restrictions. Articles 38(3) (a) and (b) of the Constitution dictates, among other things, that every adult citizen has the right, without unreasonable restrictions, to be registered as a voter and vote in any election or referendum.
Additionally, the Constitution under Article 83 reinforces the foregoing by laying down adulthood and citizenship amongst the preconditions for qualification to register as a voter.
The Elections Act, 2011 enunciates the requirements that an adult Kenyan must meet in order to register as a voter. Pursuant to Section 5(3) of the Elections Act, 2011, only a Kenyan adult who is not a voter (whose name is not in the Principal Register of Voters) qualifies to be registered as a voter. The provision further stipulates that adulthood and citizenship must be proved by either a National Identity card or a Kenyan passport.
Nonetheless, Section 5 (3A) of the same Act demands that a citizen who has attained the age of eighteen years, has registered for an identification card and is in the possession of an acknowledgement of registration certificate, commonly known as a waiting card, shall upon application be registered as a voter using the acknowledgement of registration certificate. However, the same provision prohibits one from voting while using an acknowledgement of registration certificate. To this end, a person who is registered as a voter can only vote if they are in possession of either a National Identity card or a Kenyan passport.
With reference to Section 10(1) of the Elections Act, 2011, a person who is registered as a voter can only vote upon producing an identification document. The term identification document has been accorded meaning under Section 2 of the same Act as a Kenyan National Identification card or a Kenyan Passport. Notwithstanding the foregoing, Section 10(2) of the very same Statute prescribes the identification document in Section 10(1) to mean the one used at the time of registration as a voter.
On account of Section 5(3A), allowing one to be registered as a voter as long they are in possession of an acknowledgement of registration certificate, then that acknowledgement of registration certificate, with respect to Section 10(2) qualifies as a document that one can use to vote. Allowing voters to use registration certificates as documents for identification for purposes of voting is contrary to Section 5(3A), while denying voters who produce registration certificates documents for identification for purposes of voting an opportunity to vote could be interpreted as an affront to Sections 10(1) and 10(2).
In spite of the contents of Sections 10(1) and 10(2), Section 10(3) stipulates that Section 10 does not entitle a person who is prohibited from voting by any written law to vote or relieve that person from any penalties to which the person may be liable for voting. It is justifiable therefore to state that one can only enjoy the rights provided in Sections 10(1) and 10(2) upon meeting the standards set out in Section 10(3). Given that Section 5(3A) makes it mandatory for a voter to produce an Identity card in order to vote and Section 10(3) limits Sections 10(1) and 10(2), a voter cannot thus use a registration certificate for purposes of identification for voting.
Inconsistent with the law
The Independent Electoral and Boundaries Commission (IEBC) is responsible for, under Article 88(4) (a) of the Constitution, continuous registration of citizens as voters. Consequently, IEBC has a constitutional duty of only registering citizens and that is why it relies on either a Kenyan National Identification card or a Kenyan Passport. It is noteworthy to point out that the two documents indicate both nationality and age. Accordingly, asking IEBC to register a person as a voter on the strength of a waiting card is inconsistent with the Constitution since a waiting card is not a document capable of proving either adulthood or citizenship. Further, a waiting card is a mere application for an identity card, and not proof that of one’s entitlement to an identity card.
In terms of Article 83(3) of the Constitution, IEBC has duty to make administrative arrangements for registration of voters that are geared towards facilitating and not denying eligible citizens the right to vote. The administrative arrangements contemplated in Article 83 do not in any way suggest registration of voters whose citizenship and adulthood has not been proved. It suffices to conclude that the arrangements are limited to according persons who qualify in law to register as voters to actually register as voters.
The authority of the National Registration Bureau (NRB) includes identification, registration, production and issuance of secure identification documents to all Kenyans who have attained adulthood. It is thus the NRB’s duty to ensure timeous registration and issuance of identity cards to Kenyans. The legal burden of according Kenyans with documents for voter-registration rests squarely on the NRB.
To avoid disenfranchisement, NRB has to fully execute its mandate while IEBC’s process of voter registration has to include mechanisms of ensuring that every adult Kenyan with either a Kenyan National Identification card or a Kenyan Passport is registered as a voter.
In the context of the mandate of the NRB and IEBC, no person should be allowed to use a waiting card for registration or voting. Section (5) (3A) of the Elections Act is thus merely a prostrated provision whose purpose is limited to making the Elections Act voluminous. Nothing more.