African migrants are seen at the Libya-Tunisia border in Ras Ajdir, Libya, on July 26, 2023 /XINHUA
International IDEA, based in Sweden, produces an annual report on the state of democracy worldwide. Each year this includes a special topic—which this year is “democracy on the move”.
The overseas voting issue
We all understand that the number of people leaving their own countries for others, whether temporarily or permanently, has enormously increased. Millions have no political rights. Current estimates are that three to four million Kenyans live abroad, the majority in the UK or the US with significant numbers elsewhere in Africa, Europe, Australia, the Middle East or Central/South Asia.
Should people who live abroad with no immediate interest in returning be allowed to vote? Arguments in favour tend to be that allowing overseas Kenyans would be recognition of their right as a citizen (the constitution says every citizen has the right to vote (Article 38)).
It can be argued that this strengthens the sense of connection between the migrant and the home country, which is good for their sense of stability and belonging, and may play a part in their decision ultimately to come home with the skills they have acquired abroad.
It can also be viewed as a way of strengthening accountability of elected officials.
We all know the remittances from Kenyans abroad are a major contribution to the economy. The argument goes that it’s not fair for the country to benefit, yet those people cannot play a full part by voting.
It’s all more important because of the positive encouragement of the current government to young people to leave the country. Is the idea that they will leave, work for a while, gain new skills and come home with them? Does government realise that the majority of people who leave for work, never come back to live? Is that the idea?
The arguments are not all on one side. It is expensive to organise voting for people overseas – so long as we do not have a system of online voting. Or postal voting – would we trust it?
If they still want to vote, how far is it right to allow people with little personal stake in Kenyan government, who may know little about what is happening in the country, and are not really personally affected by it to vote?
Some people have argued that even the remittance issue is not enough. This is their personal commitment to helping family – does it justify giving the family a sort of extra vote?
Constitution
Under the constitution
far more people who leave the country will retain their Kenyan citizenship.
Under the old constitution if you took the citizenship of another country you
automatically lost Kenyan. But now you can retain Kenyan. Furthermore people
who lost Kenyan can regain it. And now anyone born to a Kenyan father or mother
is a Kenyan whereas in the past only a Kenyan father would pass
citizenship.
However, the constitution does recognise it as a right of overseas Kenyans, and places a duty on the state to “progressively” register them and realise their right (Article 82(1)(e)).
Organising of overseas voting
According to the
IDEA report most countries do provide for overseas voting. Most provide just
for in-person voting while others provide the possibility - or the only method -
of postal or online voting. A few allow proxy voting – someone else voting on
the registered voter’s behalf.
Some countries have separate constituencies for overseas voters, while most integrate them into home constituencies. Some countries allow only some people to vote overseas; maybe they exclude tourists (complicated to organise also), or students, or people who have lived overseas for a long time.
Overseas voting may be abused politically. Many years ago the government of Guyana changed the law to allow overseas voting – precisely because it knew that the majority of Guyanese overseas were of the broad ethnicity of that government (basically black Guyanese rather than Asian Guyanese) and would, they assume, vote for Forbes Burnham and not Chedi Jagan. It’s something to bear in mind.
Maybe Kenyans overseas will vote a bit differently. Some research suggests the diaspora might be rather less ethnic in their voting.
Kenya
How does Kenya do it? The Diaspora Policy says “the government is gradually promoting participation in democratic processes by Kenyans abroad, through sensitisation fora, voter registration exercises and voting. This initiative saw an increase in the number of voting stations and registered voters in the diaspora from four countries namely Uganda, Tanzania, Rwanda and Burundi where 4,223 voters voted in 2017, to twelve countries…. … South Africa, South Sudan, Germany, the United Kingdom, Qatar, the United Arab Emirates, Canada and the United States where 10,444 voters voted in 2022.” In fact 10,444 seems to be the number registered; IEBC give 5,341 as the number who actually voted.
At present overseas voting is only possible in a Kenyan embassy, high commission or consulate in the country where the voter lives. Basically this means in very few big cities, making voting a major expense for people who live in huge foreign countries, such as the US, Canada, Russia, Brazil or China. And some people might actually not want to venture into those missions – maybe they are political exiles. Yet to set up polling stations elsewhere is a significant expense - think about the people needed to run it, the arrangement for getting voting papers there with proper security, and getting the votes back and counted.
The difficulties are shown by a case where Senator Omatah challenged the requirement for overseas voters to use a valid Kenyan passport and not an ID card (except in the EAC). The High Court said this was justified, because people residing overseas would need a passport, and it excluded people who might have clandestinely renounced their citizenship from participating in voting.
Passports are valid for only 10 years, ID cards for much longer – and one could have an ID even if no longer a citizen. But people who live overseas for a long time might not travel home much and not have the need for a passport. Or their passport might expire before they have to register to vote and before they have the time or the need otherwise to get it renewed.
But realistically the rule must exclude some people who are genuinely citizens, and really works as showing a connection with Kenya. In that case, to satisfy Article 24 of Constitution, the law must recognise that it limits rights and be very clear about the extent of the limitation. The law now does not.
