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February 22, 2019

The tyranny of numbskulls

CORD lawyer James Orengo scratches his head after the ruling by Judge George Odunga who declined to stop Parliament from discussing the amendments to election law on December 22, 2016./FILE
CORD lawyer James Orengo scratches his head after the ruling by Judge George Odunga who declined to stop Parliament from discussing the amendments to election law on December 22, 2016./FILE

Over the past few weeks, the country has been embroiled in an acrimonious debate on changes to the country’s elections laws. The controversial revisions to the Elections Act seek to introduce a “complementary mechanism” to the integrated electronic electoral system for identifying voters and transferring results from polling stations to tallying centres.

The proposed complementary mechanism is not defined but has been widely interpreted to refer to some sort of manual backup to be employed in case the biometric and other electronic devices fail as they did in 2013. That would allow voters to be checked off a physical register, basically a printout of the electronic one, and for forms containing results to be physically transported from polling stations where all the voting and counting happens, to the tallying centres where results are ultimately announced.

If such a manual system is what is contemplated, it is not clear whether it would be different from the system that was in place prior to 2013. In essence then, the law would not be proposing a backup but taking the country back to an era when elections were routinely stolen. In his presentation to the Senate, Royal Media Services proprietor SK Macharia noted that of the five general elections held in the multiparty era, in only one had the candidate for President receiving the most votes been declared the winner. In fact, the electronic system was itself a response to these repeated failures, which were the trigger for the 2007-08 post-election violence.

In a 2010 paper, the immediate former chair of the Independent Elections and Boundaries Commission, Issack Hassan, declared that “based on the recommendations of the [ 2008 Kriegler Report], the Commission was determined to have a fully automated electoral process, from e-registration and e-voting to, finally, e-transmission of results”.

The IEBC eventually settled on both manual and electronic components. It is nonetheless clear that the latter was introduced as a cure for the former. The amendments reverse this and now present the discredited manual system as the solution.

And remembering that the electronic system was meant to deal with specific problems in the manual system, it is notable that there has been little articulation by the amendment’s proponents of what has been done to fix those.

That the experience of the 2013 elections where the IEBC was forced to revert to a completely manual system has not featured prominently in the debate is also telling.

But what is most galling is the fact that the entire debate is conducted without benefit of an understanding of how the electoral system as a whole is meant to function, and where gaps and opportunities for mischief exist.

There is also much conflation of issues which leads to confusion. For example, the case for a “complementary mechanism”, not as a backup, but as a check on abuse of the electronic system, is much stronger when dealing with transmission of results than with voter identification.

Clearly, the current debate has been held hostage to the interests of politicians as opposed to those of Kenyans in general.

The manner in which Jubilee has bulldozed the amendments through Parliament, despite its own Senators acknowledging that the Bill contains unconstitutional provisions, amply demonstrates this.

In fact, the entire discourse on electoral reform has been polarised by politicians seeking advantage rather than attempting to reason out and fix the problems with the system.

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