Early last month, the Independent Elections and Boundaries Commission chairman A. Issack Hassan and commissioners made whirlwind trips across the globe, ostensibly to gather views from Kenyans on the upcoming 2012 general elections.
On December 12, 2011, at a meeting in Minneapolis, the IEBC CEO James H. Oswago assured his audience that the commission 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 Oswago insisted that IEBC was yet to make a decision on the manner of registration and voting, Hassan swiftly overruled him, stating that that the only realistic option for the diaspora was in-person registration and voting at embassies and consulates. Isaack insisted that this option fully satisfied the constitutional requirement of “progressive realization of the right to vote.” He even suggested that IEBC had considered denying Kenyans in the diaspora their right to vote till the 2017 general elections due to a shortage of time.
According to Hassan, “progressive realization of the right to vote” means a couple of limitations: Kenyans in the diaspora will only be permitted to register and vote at embassies and consulates; the 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.
I fundamentally disagree with such constricted reading of applicable law. 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. 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 the United States, the Kenyan embassy is located in Washington, D.C., with consulates in New York, New York and Los Angeles, California. Thus, only Kenyans in contiguous states like Virginia, Maryland, Arizona, Nevada, New Jersey can afford the time and money to register and vote. Locating voting and polling stations at only three cities across the entire breadth of the U.S. is preposterous. It ignores the undeniable reality of the enormous concentrations of Kenyans in the midwestern and southern states. !
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 York and Los Angeles makes nonsense of the spirit of the new Constitution. According to 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. 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— 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
Finally, the casual dismissal of the role Kenyan Diaspora is disquieting. If the Diaspora is Kenya’s 48th (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.
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 are the issue, then Hassan and the IEBC should initiate a sober and purposeful discussion with the Diaspora 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 and New York in the United States of America. He is also an Advocate of the High Court of Kenya.
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