Published On: Wed, Nov 21st, 2012

Why High Court Ruling on Diaspora Voting is Flawed

By Henry K. Ongeri* & Peter Kerre*

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.

Additionally, perhaps in the haste to timely deliver the judgment, the Court frames “four issues” for determination and disposition but only outlines three:

a)First, the nature and extent of the right to vote for Kenyan citizens residing outside the country;

b)The extent of the responsibility of the IEBC to facilitate this right;

c) Whether I should grant the reliefs sought.”

While this may well be an otherwise forgivable typographical error, in a matter of this magnitude, one wonders about the thoroughness of the judgment itself. Serous legal writers may also take issue with the structure of this paragraph, where the Court begins with “First” and no subsequent items follow. It is curious that such pedestrian mistakes appear in a judgment this significant.

Second, the Court fundamentally misconstrues and misapplies Article 38(3) of the Constitution which states, “Every adult Kenyan has the right (to vote) without unreasonable restrictions.”(emphasis added).  Apparently as per the Court, the Diaspora is one, monolithic and identical unit. On the contrary, Kenyans living abroad reside in countries with widely varying circumstances. For instance, one cannot rationally treat the United States (which is a continent for all practical purposes) as one would a small country like the Gambia.  Put another way, restrictions that may not be unreasonable for a Kenyan in the Gambia may be unduly burdensome, expensive and unreasonable for a Kenyan in the U.S. or Russia. Equally unrealistic, Kenyans living in the entire West Africa region (including the Gambia) will all be expected to travel to the sole Embassy in the region in Abuja, Nigeria. When determining whether restrictions may be “unreasonable” under Article 38(3), the Court has to necessarily conduct a more deliberate and specific inquiry. Sadly, it did not.

In the U.S., the Kenyan embassy is located in Washington, D.C., with consulates in New York, New York and Los Angeles, California.  Thus, only those Kenyans in contiguous states like Virginia, Maryland, Arizona, Nevada, New Jersey or other nearby states can afford the time, hassle and money to travel there and register. For a Kenyan in Minnesota, air travel from Minneapolis – Washington D.C is $500 (Kshs. 34,069); accommodation – $250 (Kshs. 20,825) per night, food – $50; lost income – a minimum of 2.5 days, depending on wages, may range from $1,000 (Kshs. 83,000 per day).  Come March 4, 2013, the poor Kenyan has to do this all over again. In contrast, most Kenyans back home can literally get to their polling stations at minimal or no expense. To have the High Court rubber-stamp such absurdity is incredulous.

In the specific case of the U.S., meaningful and well-intentioned compliance with the Constitution would require IEBC to locate polling stations in states with the largest concentration of Kenyans. Contrary to widely held misconceptions, Kenyans in the Diaspora do not seek to vote in every city of their residence.  Possible select locations include Minneapolis, MN; Chicago, IL; Kansas City, KS; Detroit, MI; Atlanta, GA; Dallas, TX and Seattle, WA. Ironically, IEBC visited most of these cities during its U.S. tour in 2011! In doing so, Kenya would be joining several countries (including South Sudan) that have provided their citizens with reasonable access to the franchise.

Third, the Court seems to buy IEBC’s untenable position hook, line and sinker. Nothing in the decision shows that the Court inquired into IEBC’s preparations to determine whether the restrictions it intended to impose on Diaspora Kenyans were reasonable or not. Thus, the Court essentially elevates the provisions of the Elections Act, the IEBC Act and the Elections Regulations above the Constitution. Disenfranchisement of millions of eligible voters by IEBC is one thing, but getting judicial imprimatur quite another.

Fourth, by this unprecedented decision, the High Court has sanctioned IEBC’s “race to the bottom” approach. In other words, doing the bare minimum to satisfy literal constitutional and legal mandates is now legally acceptable.  The Court seems to unquestionably accept IEBC’s “legal, administrative and policy” limitations without an affirmative finding on what these may be.  According to the Court, “The right to vote for persons residing abroad presents complex problems.” In a glaring omission, the Court neither identifies nor analyzes what these problems are and how they could be solved within the framework of the law.  Just as importantly, the Court is unconcerned why these “complex problems” remain unresolved and whose responsibility they are.

Further, the Court suggests that “available resources and time” were factored in its decision. Truth be told, IEBC has never bothered to determine how much time or resources were necessary of the “progressive realization” of the right to vote by Kenyans in the Diaspora.  Many Kenyan organizations and individuals offered to help but IEBC stonewalled and dismissed them. They even offered a few low-cost yet plausible and workable solutions. It is the epitome of dishonesty and betrayal by the IEBC and High Court respectively to blame the Diaspora for “problems” whose solutions are readily available. As early as August, 2011, Diasporans sought to engage IEBC in positive dialogue but they were continuously rebuffed. Going to court was only a last resort. With this ruling, the Court has slammed the door shut to them too.

Fifth, petitioners in the current application never sought “instant realization” of the right to vote. With due respect, the Honorable Court purports to deny relief that was neither sought nor is applicable in the matter.  All the petitioners and fellow Kenyans in the Diaspora seek are reasonable opportunities to exercise what is after all, a constitutional right.  Indeed, the petitioners made modest prayers such as additional polling centers, secure electronic voting and a chance to vote for other candidates, not just presidential. But the Court dismisses these as instant and opts not to “interfere in (sic) the work of the IEBC.”  One legitimately wonders why a court of law would espouse such blatant activism.

Finally, the Court’s lengthy foray into a series of international instruments seems to be little more than a red herring. The Court spends pages on such instruments as the International Covenant on Civil and Political Rights, the International Convention on the Protection of All Migrant Workers and Members of Their Families, the African Charter on Democracy, Elections and Governance and the Venice Commission.  These instruments are relevant only in so far as they shed light on resolving the issues at hand. As the Court aptly points out, Kenya has not ratified any of them.  Therefore, their relevance and applicability to the matters raised by the petitioners is suspect. Besides, a common thread among them seems to be facilitation, not hindrance of the right to vote by non-resident citizens.

In sum, the High Court missed a tremendous opportunity to make history. While the judgment skirts around all the other issues raised in the petition, one is left wondering why the IEBC emerges victorious. It is equally unclear why the petitioners lost.  This judgment is a radical departure from the decisions that Kenyans were beginning to expect from the reforming judiciary.  One must wonder if the country is headed back to the dark days when judges were robed mouthpieces of the executive branch.  Kenyans need no reminder that the country imploded in 2007/2008 due to a bungled election exercise. Petitioners would be well advised to lodge an expeditious appeal against the decision by Justice Majanja.

*Mr.  Ongeri 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.

* Mr. Kerre is a Co-Convenor, Kenya Diaspora Alliance (KDA). He is also the Chair of the Viral/Media Committee.

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