Kenya: Why High Court Ruling On Diaspora Voting Is Flawed

On November 15, 2012, High Court Judge David Majanja delivered the much-anticipated ruling on the issue of voting by Kenyans in the Diaspora.

This was the matter of New Vision Kenya (NVK Mageuzi) et al v. Independent Electoral and Boundaries Commission (IEBC) & 4 Others, Petition No. 331 of 2012, in which the petitioners had sought orders among others, to compel IEBC to set up more polling stations in the Diaspora.

The Court dismissed the petition, finding that the right of Kenyans abroad to vote was not absolute and may be subject to reasonable restrictions. It agreed with IEBC that the law only permitted “progressive realization” of the right to vote by these Kenyans.

We respectfully disagree with the Honorable Court. Moreover, in our view, the ruling is flawed and exhibits a misreading of the law to the extent that it purports to summarily dismiss a right as fundamental as voting.

An even keeled analysis of the developments in the long-running dispute would reveal that IEBC has always desired this precise outcome. It may well be an early Christmas present to Chair Ahmed Issack Hassan and fellow commissioners.

Here are some of the reasons: First, upon a close reading, the judgment flies in the face of the spirit of the Constitution of Kenya, 2010. The overall thrust of the new Constitution was to reverse governance dynamics and to elevate the people over government and its agencies. Article 1 provides: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Kenyans were deliberately stating that the governors shall only exercise power as granted and delimited by the governed.

It is troubling that the Court seems to permit IEBC an unfettered hand to even defeat any Kenyan’s fundamental right to vote (whether they reside in Kenya or abroad). According to the Court: “….criteria how and when Kenyans shall vote… is within IEBC’s discretion.”

Taken to its logical end, this means that IEBC may lawfully deny otherwise eligible Kenyans their right to vote in its sole “discretion.” An agency exercising sovereign power on behalf of the people of Kenya with unqualified authority to ride roughshod over peoples’ fundamental rights? Surely, this cannot be allowed to stand in the new dispensation.