Why IEBC Must Not Disenfranchise Diaspora Kenyans

By Henry Ongeri

Early this month, Independent Elections and Boundaries Commission (IEBC) Chairman Issack Hassan and commissioners made whirlwind trips across the globe, ostensibly to gather views from Kenyans on the upcoming 2012 general elections.  OnDecember 12, 2011, I attended one such meeting inMinneapolis,Minnesotain theUnited States. IEBC Chief Executive Officer James H. Oswago assured the audience (to rare applause), that the commission was on a listening tour and IEBC was still considering various options for registration and voting options for Kenyan citizens in the Diaspora. His list included voting by mail, in-person voting at embassies and consulates and electronic voting via the internet.

Though the Mr. Oswago insisted that IEBC was yet to make a decision on the manner of registration and voting, Chairman Hassan swiftly overruled him, repeatedly stating that that the only realistic option for the Diaspora was in-person registration and voting at embassies and consulates. Further that somehow, this option fully satisfied the constitutional requirement of “progressive realization of the right to vote.” He even suggested that IEBC had considered denying Kenyans residing outside of the country its right to vote till the 2017 general elections due to a shortage of time.

According to Chairman Hassan, “progressive realization of the right to vote” means a couple of limitations: Diaspora Kenyans will only be permitted to register and vote at embassies and consulates; Embassy and consulate staff will serve as returning and presiding officers and Diaspora voters will only vote for presidential candidates, eschewing National Assembly,  County or Senate contestants.  In essence, this would be the substance of the regulations that IEBC was sending to Parliament for approval.

Like hundreds of thousands of Kenyans in the Diaspora, I fundamentally disagree. Such  constricted reading of applicable law is disconcerting, to say the least. Indeed, it may be a violation of Section 38(2) of the Constitution, which guarantees every Kenyan citizen the right to a free, fair and regular elections based on universal suffrage.  For this piece, I do not address the wisdom or otherwise of using embassy staff-who are political appointees- to oversee and report the outcome of, such supposedly free and fair elections.

Under Section 82(1)(e) of the Constitution, Parliament is mandated to enact legislation providing for the progressive registration of citizens residing outsideKenya, and the progressive realization of their right to vote. One such law is the Independent Electoral and Boundaries Commission Act. Section 31(2)(e) of the Act requires the IEBC to make regulations providing for registration and for putting into effect the progressive realization of the right to vote for Kenyans residing outside of Kenya. Like other functionaries of State organs, IEBC commissioners have taken an oath to, at all times, obey, respect and uphold the Constitution of Kenya and all other laws.  Naturally, any statutes enacted pursuant to Section 82(1)(e) and regulations promulgated thereunder, must conform to the dictates of the Constitution.

While seemingly rational on the surface, the IEBC proposal for Diaspora voters is tantamount to denial of the fundamental right to vote by bureaucratic pronouncement.  First, it practically strips away the right of every Kenyan to vote if they are unable to travel to far-flung diplomatic installations in their country of residence. For example in theUnited   States, the Kenyan embassy is located inWashington,D.C., with consulates inNew York,New YorkandLos   Angeles,California.  Thus, only than Kenyans in contiguous states likeVirginia,Maryland,Arizona,Nevada,New   Jerseycan afford the time and money to register and vote.

Locating voting and polling stations at only three cities across the entire breadth of theU.S.is preposterous. It flies in the face of the undeniable reality of the enormous concentrations of Kenyans in the Midwestern and Southern states and cities.  Just to name but a few, these are:Minneapolis,Minnesota,Chicago,Illinois,Kansas   City,Kansas,HoustonandDallas,Texas,Detroit,MichiganandAtlanta,Georgia.  Ironically, IEBC visited most of these cities during its recentU.S.tour!

Second, the proposed regulations would purely be technical obedience to the law, while in practice, eviscerating a fundamental right. It is a time-honored canon of statutory construction that in enacting legislation, Parliament could not have intended an absurd or manifestly unjust result. In other words, IEBC must read laws in a manner that makes sense and avoid inevitable absurdity.  Nothing could be more absurd than requiring Kenyan citizens to travel thousands of miles just to register and vote.

Additionally, arguing that “progressive realization” only requires IEBC to locate a registration and voting desk in Washington, New Yorkand Los   Angelesmakes nonsense of the spirit of the new Constitution.  Per Webster’s Dictionary, “progressive” means moving forward, evincing progress or favoring improvement, change or reform.  It defies logic that erecting unreasonable hurdles for the Diaspora in exercise of the right to vote may somehow, be progressive.

Third, the IEBC proposal would be unduly burdensome and prohibitively expensive for Kenyans not residing near embassies and consulates.  For example: for a Kenyan inMinnesotaair travel fromMinneapolis–WashingtonD.C.- $500 (Kshs. 34,069);  accomodation – $250 (Kshs. 20,825) per night, food – $50; lost income (minimum of 2.5 days, depending on wages, may range from $1,000 (Kshs. 83,000 per day).  Come voting day, whether in August or December, 2012, the poor Kenyan has to do this all over again.  In contrast, Kenyans back home can literally walk to their stations, at minimal or no expense.

Fourth, the proposal would set a terrible precedent by sanctioning IEBC’s race to the bottom. In other words, doing the bare minimum to satisfy literal constitutional and legal mandates would now become legally acceptable.  Parliamentary approval of the regulations by IEBC would inevitably lower the bar for performance of public agencies in matters affecting the citizenry.  It is ironic that IEBC continually brags of the technical competence and expertise of its commissioners and staff while at the same time viewing the relatively uncomplicated additional voting stations as a “logistical nightmare.” For this reason, reasonable people can legitimately question IEBC’s competency and ability to handle the intricacies of the 2012 elections.

Finally, the casual dismissal of the role Kenyan Diaspora is disquieting.  If it is the Diaspora is Kenya’s 48^th (and financially affluent) county, why treat it as though they were composed of second class citizens? Given the undisputed role that remittances play in propping the Kenyan economy, the IEBC’s disdainful attitude towards the Diaspora is inexcusable. By squandering its opportunity to engage the Diaspora in a meaningful dialogue on HOW to most effectively handle the registration and voting, IEBC is now left to tis own devices. Kenyans in the Diaspora will incessantly demand realization of their right to vote, with only equitable and justifiable constraints.

All Kenyans of goodwill must rise up and stop IEBC from unilaterally disenfranchising Kenyan citizens under the guise of “progressive realization” or some other lame excuse.  An online petition challenging IEBC’s proposed regulations is available at http://www.gopetition.com/petitions/kenya-diaspora-right-to-vote.html.   Kenyans and friends ofKenya are signing up in large numbers to support the right to vote. Will you be one of them?

IEBC would be loath to make the argument that Kenyans (to whom sovereign power ultimately belongs) intended to hand over such a fundamental right to the whims and convenience of IEBC commissioners.

At a minimum, IEBC should locate registration and polling stations within reasonable traveling distance (by airplane, train or automobile) of the cities with the largest concentration of Kenyans across the Diaspora. If resources were the issue, then Chairman Hassan and IEBC should initiate a sober and purposeful discussion on that particular challenge to find sensible solutions.  And come 2017, all Kenyan citizens should be able to vote electronically, regardless of geographical location or time-zone.  Now that is progressive.

 

*The author is an attorney and counselor at law in the States of Minnesota andNew Yorkin theUnited States of America.  He is also an Advocate of the High Court of Kenya.