8TH JULY 2022

RE: SECURING THE INTEGRITY OF THE 2022 ELECTIONS

It is now 31 days to the general election and Kenyans are yet to receive the aggregated voters’ register for the polling stations. This is so even after the IEBC gazetted the Revision of the Register of Voters (RoV) for purposes of the August election through Notice No. 7290. By failing to publish the RoV for public inspection to date, the IEBC is in direct contravention of election laws and regulations. Section Sec 6A (3)(a)(b) of the Election Act obliges the Commission to publish the Register after the end of the verification process, and within 90 days of issuing notice of the general election, which was done through Gazette Notice no. 430 on January 20th, 2022. Regulation 27 of the Elections Regulation 2012 also requires that the register, once certified and gazetted be made readily available to the public for inspection at all polling stations through a public web portal or any other medium that may be approved. Court decisions have obliged the IEBC to publish the register in all polling stations and on the online portal and determined that verification and inspection are separate processes. The Constitution of Kenya is unequivocal that citizens are required to participate in an election that is free, fair, simple, transparent, accurate and verifiable. The basis for this is a credible voters’ register.

A Register of Voters is a list of all the Kenyans who are registered to vote in each election, containing their biometric and biographic details. As the gateway to the ballot box, voter registration and the RoV is a highly sensitive and vital part of any electoral process. Without a credible register, it is difficult to assess the quality or honesty of elections.

Kenya’s voter register has remained a contentious issue for decades. Persistent problems include discriminatory access to voting rights for marginalised communities, women and youth, low levels of registration of new voters, the transfer of voters without their knowledge or permission, duplicate identification records, discrepancies between the paper register and the electronic version of the register, and shifting totals in the number of registered voters.

In 2013, the register was highly contested due to unexplained shifts in the number of voters in certain party stronghold areas, the use of the tainted ‘Green Book’ for identification at the expense of the biometric register and the multiple registers with different totals of voters which were in use.

In 2017, again the Register was in the limelight for similar issues. When the IEBC Chair declared the results of the presidential election, he announced a total of 19,631,796 registered voters, but in the fresh election on October 26th this total changed to 19,611,457. Neither of these numbers corresponded with the gazetted total of 19,611,423. The KPMG company conducted an independent audit and found numerous inaccuracies, e.g. the biometric list of voters contained 1,162 more records than the biographic list. There were egregious lapses in the management and security of the database and lax handling of the inventory for voter registration. Poor tracking and authentication of BVR kits as well as negligent control of data security meant that illicit interventions could not be excluded. The validity of the register was in serious doubt as some of the issues flagged by KPMG depended on other state actors, especially the Principal Registrar of Persons and the Director of Immigration, whose records were out of date and incomplete. The audit unearthed an estimated 1,037,260 dead voters. The Kriegler Commission had estimated approximately 1.2 million dead voters in 2008. The IEBC now claims to have reduced the 2017 “ghost voters” number to 246,465. Without the publication of the full KPMG report, Kenyans will be unable to convince themselves of the accuracy of the IEBC’s claims. Although the published findings are alarming enough, Kenyans still do not know the most critical findings of the 2017 KPMG audit, nor whether they have been rectified, since their publication was suppressed.
The IEBC is not at a loss for directions on how to handle the RoV. The issue has been heavily canvassed by courts, whose decisions have provided the IEBC with ample guidance on fulfilling constitutional principles in its operations. In a petition filed shortly before the 2017 election, the court clarified that the “…inspection of the register, is a process that is open to all voters, all citizens, accredited observers, political parties and their agents whose purpose is to ensure that the voter register has captured accurately the details of all voters, there is no duplication of voter registration and further that there are no irregularities on the voter register”. It further added that this is different from the process where an individual voter verifies their biometric information that will be used to identify them as a voter1.

In another Petition before the 2017 election, the Court agreed with the petitioners that IEBC has a duty to comply with Sec. 6(1) and 6(2) of the Elections Act, which provides for verification and a requirement that the register be opened for inspection by members of the public at all times for the purpose of rectifying the particulars therein as a right under Art. 35 of the Constitution on access to information. The Court ordered IEBC to release the voters’ register containing all information prescribed in Form A of the schedule to Election (Regulation of Voters) Regulation 2012 in all polling stations and in the public online portal; save voters’ confidential personal information which is protected under the constitution.

The Angaza movement has already publicised its concerns on several critical processes on the RoV appearing to take place at the same time, i.e. verification, cleaning and auditing. The public is now left with unanswered questions as to precisely what the IEBC gazetted, if it is hesitant to publish the register which it presumably certified when belatedly gazetting it on June 20th, 2022.
1 Judicial Review Miscellaneous Application 447 of 2017

This year the delay in the gazettement of the Register has also resulted in uncertainty on the printing of ballots and how different candidates are to prepare for the election in the absence of a final aggregated voters register. IEBC has, by default or design, imperilled preparations for this election by delaying in compiling the voters’ data and in convening meetings with the candidates at county or constituency level. Yet again, in this election year, IEBC is failing to adhere to its constitutional, statutory obligations and even to its own timetable in releasing the aggregated voter register. By its own reckoning, the IEBC should have released the full Voters Register on or before 29th June 2022.

We therefore demand that;

1. The IEBC releases the Aggregated Voter Register immediately for inspection. This means that a hard copy excerpt must be made available for candidates, the public, monitors and observers for inspection by the public and monitoring by interested parties.

2. The Electronic Register and the Manual Register which IEBC has been compelled to use by courts should reflect the same status of the registered voters in each polling station. The IEBC must therefore simultaneously release the electronic register online in a user-friendly format so that Kenyans may persuade themselves that there are no discrepancies between the print-out of the register and the electronic version.

3. The IEBC releases the KPMG Voter Report Audit in its entirety to the members of the public as it has on previous occasions indicated that KPMG has already completed the audit exercise and handed over the Report. The public must be allowed to know what the KPMG found, and whether the IEBC has complied with its recommendations.

Davis Wambua Malombe

Executive Director
Kenya Human Rights Commission
ON BEHALF OF:

WINNIE MASAI – INFORMACTION
BETTY OKERO – ANGAZA MOVEMENT/CSO NETWORK
GLADWELL OTIENO – AFRICOG
KHELEF KHALIFA – MUHURI
ELSY SAINNA – ICJ-KENYA
WAMBUA KAWIVE – INUKA KENYA
JOSEPH OMONDI – MIDRIFT NETWORK
FR. GABRIEL DOLAN – HAKI YETU
DAISY AMDANY – CRAWN TRUST

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