Referendum seems to be coming - can we redeem the Election law?

Tuesday September 03 2019

Punguza Mizigo Bill and the anticipated Handshake Bill…one or both of them are likely to result in a referendum before the next general election in 2022.

IEBC is of course expected to manage the referendum the usual way they manage the general election.

A referendum bill is expected from Parliament to clarify or operationalise finer details of how IEBC would manage a referendum – but such a bill would not be very different from the mother bill called the Election Laws Act.

Indeed IEBC can actually execute the referendum elections without a referendum bill in the same spirit it did during the 2010 referendum that gave us the new constitution.


In other words, the blueprint for managing a referendum is written within the existing Election Laws Act.


This Act, however, has since 2016 undergone very significant amendments that were made with a lot of malice against technology driven elections.

First to go was the joint ICT Technical committee on electronic aspects of the election process.

It had representatives from political parties and professional bodies with the Commissioner in charge of ICTs at IEBC as the Chair.

After a few sittings, some Kenyan somewhere petitioned some magistrate who reviewed the petition and was convinced and subsequently ruled that such a committee is illegal.

Apparently inviting stakeholders into the server rooms of IEBC before elections is illegal, but inviting them into the same server room - as directed by the Supreme Court – after elections is quite fine and in order.

Anyway, prior to the 2017 elections, parliamentarians kicked off another storm with the government’s majority party proposing amendments to eliminate the need for voters to be identified biometrically using fingerprints.


The argument then was that some voters – particularly those doing menial jobs such as quarry workers or tea pickers – may have unreadable fingerprints by the time they line up to vote.

A strict requirement to have them identified through the fingerprints method would therefore deny them a constitutional right to vote.

After much push and pull, the minority had their say, but majority had their way and the Election Law was amended to allow IEBC to accept voters to be identified in other complimentary ways that do not involve biometrics.

Soon thereafter, the Supreme Court nullified the Presidential election largely due to issues surrounding the electronic aspects of the election, the majority party was back with some vengeance on the Election Law.

Their mission?

Amend, and if necessary mutilate the Election Law to ensure that the second Presidential election is not hampered by minor inconveniences and technicalities such as biometrics, cloud servers, electronic transmission, electronic results amongst others.

Using their majority numbers in Parliament, the ruling party pretty much delivered on this mission when they effected and passed the 2017 Amendments to the Election Law

In precise terms, IEBC is NOT mandated to use technology in their subsequent electoral processes. The fact that they often opt to is really a matter of what former Speaker Kenneth Marende called – because of philanthropic reasons.


What’s more, technology costs money and MPs now have an excellent reason not to fund fancy technological equipment and platforms that IEBC may request in future.
This is because since they are optional rather than mandatory in eyes of the law.

Indeed Kenyans have very short or selective memories.

Just about ten years ago, we hired one eminent Judge Johann Kriegler, who told us in clear terms that the 2007 Post Election Violence was occasioned because our electoral systems were so manual and easy to manipulate - so that it was impossible to verify who actually won.

Automating some, if not all of our electoral process was one way to get us out of the mess since technology can enhance transparency, integrity and accountability in our electoral processes.

The multiple amendments visited on the Election Law were basically designed to claw back, rather than enhance the role of technology in our election processes.

The current form of the Election Law puts the country back to where it was pre-2007 election. Is this the law we want to guide our referendum and subsequently the 2020 general election?

It is up to the citizens to demand a better law, because the politicians will not given that each competing party believes they can use the existing manual loop holes to gain an upper hand.

Can what remained of the Civil Society take up this task or should we just call up one Okiya Omtatah to save us from ourselves?

Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT.

Email: [email protected], Twitter: @Jwalu