Wafula Chebukati, Attorney General differ over mode of voter identification

Attorney General Kihara Kariuki. [Chemtai Lochakapong, Standard ]

The electoral commission chairperson Wafula Chebukati has differed with Attorney General Kihara Kariuki on the mode of voter identification.

Chebukati, through lawyer Edwin Mukele told High Court judge Mugure Thande that Independent Electoral and Boundaries Commission (IEBC) does not need to deploy printed voter registers as a complementary to the Kenya Integrated Election Management system (Kiems) kit. 

The AG was responding to a case filed by seven lobby groups -- Kenya Human Rights Commission, Katiba Institute, Kenya 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.

Chebukati said the case filed by civil societies and backed by the AG is out of a misunderstanding of what a complementary system means. He added that the basic mode of identification is the fingerprint. If this fails, he said, a returning officer ought to key in the name of the voter as a complementary system.

“Biometrics identification is the main mode of identification. Where a voter cannot be identified, the returning officer shall use a complementary system which is an alphanumeric search. There is a complete misconception of what the complementary system is,” said Mukele. “The first and second respondent in making the decision not to deploy the printed register acted within the law.”

He also said that a manual or a printed register is the last option if the kits and the replacement fail. Using a manual register ought to be with the approval by the commission. “The printed register is not the complementary system as suggested by the petitioners,” said Mukele.

Chebukati took a contradicting position to that of the AG who faulted IEBC for indicating that it will not use a 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 Chebukati) to completely avoid the use of printed/manual register as a complementary 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 said.

The AG has taken the position of Azimio that IEBC should use both electronic and manual registers to identify 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.

IEBC Chairman Wafula Chebukati speaks at a press briefing after a meeting with party representatives. [Wilberforce Okwiri, Standard]

Kihara said that the Supreme Court in 2017 found that the technology adopted by the IEBC is yet to achieve reliability to be considered as an irreversible foundation of an electoral process.

He also relied on a Court of Appeal finding that the use of Kiems kits during an election without a physical register is discriminatory to persons whose biometrics cannot be picked.

Although the law does not define what a complementary system in an election is, the AG said, the fallback should be use of manual register. “With the complementary system not being expressly defined by the statute, it is our humble submission that such should be the use of printed/manual register as the complementary system,” said Kihara.

“Printed or manual register is best to protect the rights to vote both for those registered voters whose details may fail to appear or be picked in the electronic system as we have demonstrated in our submissions further supported by the thinking of courts in a similar question.”

The Kenya National Commission on Human Rights (KNCHR) also wants the of use both registers.

IEBC announced it would only rely on its digital register to identify the 22.1 million voters but it is being accused of bias.

The State agency’s lawyer Fidelis Limo argued that IEBC cannot guarantee that its electoral technology will not fail. He said the only guaranteed backup is a manual register.

The groups say IEBC has failed to comply with the 2017 Supreme Court judgment requiring it to ensure all polling stations are connected to a 3G/4G network, and the commission admitted that at least 1,111 polling stations lack 3G coverage.