The Independent Electoral and Boundaries Commission (IEBC) may have erred when it gave Mr McDonald Mariga the green light to run in the Kibra by-election set for November. A number of questions remain unanswered concerning the ruling, which may have opened the Pandora’s box. On Monday, the commission held that Mr Mariga is a duly registered voter on the basis of an acknowledgement slip.
According to the Elections (Voter Registration) Regulations, 2012, an acknowledgment slip is evidence of an application for registration and not proof of registration.
“The meaning of the ruling is that there is no need for a register and therefore, if I have an acknowledgement slip, I am considered a registered voter,” said a source at the commission.
Going by the provisions of Elections (Voter Registration) Regulations, the process of registration does not end at the issuance of an acknowledgement slip, as the judgment issued by the IEBC committee appeared to suggest.
In a July 2013 judgment on the dispute between lawyer Kethi Kilonzo and IEBC, also over registration, a three-judge bench of the Constitutional and Human Rights Division of the High Court held that a voter whose details are missing from the principal register is considered non-registered because “the Principal Register of Voters is … an identifiable document.” “An acknowledgement slip without the backing of the Principal Register is not proof of registration as a voter,” Justices Richard Mwongo, Mumbi Ngugi and Weldon Korir stated.
The judgment was delivered after the commission’s dispute resolution committee had rejected Ms Kilonzo’s appeal to be cleared to contest in the by-election following her father Mutula Kilonzo’s death in 2013. The committee at the time held that an acknowledgement slip is not proof of registration.
Ms Kilonzo then moved to the High Court to appeal the determination.
In the case of Kibra, the source told the Nation that the register was handed over to returning officer Beatrice Muli, after it had been approved by the agency’s Elections Technical Committee chaired by commissioner Abdi Guliye.
It was then taken to the plenary and was considered an authentic document owned by the commission. It’s therefore curious how the same commissioners turned their backs on the same register it handed over to the returning officer. It was also curious that commissioner Boya Molu was asking Ms Muli about the register she used during the hearing on Friday yet he was part of the team that handed it her. IEBC chairman Wafula Chebukati did not respond to our calls and text messages. Sources said he is out of the country on official duty. The Nation reached out to the director in charge of voter education, partnership and communication, Ms Immaculate Kassait, who said the commission will respond to our queries today.
“We will advise on the response tomorrow since most people have left the office,” Ms Kassait said.
For the register to be generated, there must be compilation and deduplication to check if there are duplicate applications, certification and finally gazettement.
Rarieda MP Otiende Amollo took to his twitter account to express his disappointment with the ruling.
“Listening to the pontification and prevarication of IEBC commissioners, it is clear to me more than before that we must sweep the commission clean at the top,” reads the lawmaker’s tweet.
While delivering the ruling, Mr Chebukati said that although Ms Muli said she was unable to find Mr Mariga’s name in the Kiems kit at the point of verification, she could not confirm whether the register being used had been updated.
“We are of the view that the absence of Mariga’s name in the register that was used by the respondent could not have been taken as conclusive proof of lack of registration given that Mr Mariga had indicated that he was registered in a different constituency,” Mr Chebukati said.
“We are aware of the technological challenges which might result in a delay in real time update of the Kiems kit, especially where the registration process is conducted in different areas using BVR machines,” he added.