General elections are less than two months away.
It is only natural that the state of Kenya’s electoral agency’s preparedness, the Independent Electoral and Boundaries Commission (IEBC), be called to question.
Some concerns come to mind. The first has to do with the IEBC’S decision to do away with physical registers at all polling stations across the country and to replace them with biometric ones.
When this decision is evaluated against the possibilities of what could go wrong, it raises concerns. For one, the election is a process enabled by the Constitution. The same Constitution envisages only certain outcomes without the possibility of challenge, delay, or postponement, to wit, that elections must be held on the second Tuesday of August every five years.
Anyone who has used an electronic device for an extended length of time is acutely aware of failures that may arise from any given number of reasons. Mobile phones may suffer lack of network, laptops could hung or computer systems crash from an overload of data.
Biometric registers, being electronic, are not exempt from such failures. What then happens when polling stations face these challenges? How will delays that arise be handled? What if the systems are restored beyond the statutory voting hours? Will a postponement be mooted for those still on the voting queues?
Then there has been the mysterious transfer of voters in at least six counties casting aspersions on the integrity of the register itself. These counties have been flagged for having recorded transfers from one polling station to another of up to 29 per cent against the national average of 5 per cent.
They have also recorded an inordinately high number of new registrations at 28 per cent compared to the national median of 14 per cent. Closely linked to these are complaints from some voters of being transferred to new voting areas without their consent.
From the foregoing, questions arise. In the absence of a physical register at polling stations, should the biometric register fail, what is the logical course of action? By dint of such failure, to deny voters their inalienable right to elect their leaders is not envisaged by the Constitution.
Neither is a postponement in the event that the issue is not resolved within voting hours. Whichever the case, a constitutional process arises that yields extra constitutional outcomes. Then again, is the mass movement of voters from one area to another, some without their consent, a curious case of gerrymandering?
Transparent elections are critical to the wellbeing of the nation. In the past, the flawed conduct and management of voting bred a climate of political violence and uncertainty. The tragic events following the 2007 national elections are still etched indelibly in the minds of many. A core tenet of democratic elections is that they must be free, fair, credible, and transparent.
When leading candidates begin to question the credibility of the process, it behoves the IEBC to allay all reasonable fears; to address all concerns within the limited time left to the elections. But fundamentally, it also looks at the possibility of future constitutional amendments. It exposes sections of the electoral law that would remain unresolvable if the Supreme Court had upheld the basic structure doctrine.
Perhaps going forward, it will be possible to have laws in place that anticipate and resolve intractable problems that could create a constitutional crisis.
Because Kenya has experienced its darkest times around national elections, the IEBC cannot drop the ball. It cannot afford the resultant anarchy that could potentially drive the country to an Armageddon from which it would be impossible to return.
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As it continues to give regular press briefings on the audit of the register of voters, let IEBC give Kenyans every assurance that come August 9, leadership renewal will be conducted freely, transparently, and within constitutionally set timelines.