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Petition E306 of 2022 ON THE ABANDONMENT OF THE MANUAL REGISTER FOR THE 2022 GENERAL ELECTIONS

[1 ]The Petition before me dated June 21, 2022 arises from a statement made by the 2nd Respondent, National Returning Officer, Wafula Wanyonyi Chebukati that the 1st Respondent, Independent Electoral and Boundaries Commission (IEBC) shall not use the manual or printed register of voters in the conduct of the forth coming general elections on 9.8.2022 (the General Elections). The statement was made in response to concerns raised with the 1st and 2nd Respondents by Azimio La Umoja One Kenya Coalition Party (Azimio), one of the political formations that has fielded a presidential candidate in the General Elections. The Petitioners are concerned that as a result of the decision made of abandoning the use of the manual register, eligible voters shall be denied their right to vote, on account of lack finger prints or technological failure.

[2]  The Petition is filed by 7 Petitioners.

[3]  The 1st Petitioner, Kenya Human Rights Commission, is a Non-Governmental Organization registered under the Non-Governmental Organization Act, 1990 and is devoted to the promotion of Human rights in the country. Its objects include promoting Human Rights, Fundamental Freedoms, Social, Cultural and Economic Rights, Good Governance and Democracy.

[4]  The 2nd Petitioner Katiba Institute is a registered Constitutional Research Policy and Litigation Institute established to further the implementation of the 2010 Constitution, and to generally seek the development of a culture of Constitutionalism in Kenya.

[5]  The 3rd Petitioner, Kenyan Section of the International Commission of Jurists, also known as ICJ Kenya, is a Kenyan non-governmental organization, a National Section of the International Commission of Jurists. It is composed of lawyers who work to promote human rights and the rule of law. Its objectives include developing, strengthening, and protecting the principles of the rule of law, enjoyment of human rights, independence of the judiciary and the legal profession, and promotion of the provision of legal services.

[6]  The 4th Petitioner, Haki Yetu is a Human Rights Organization established in 2008 in an informal settlement in Mombasa County, Kenya, with the specific aim of advocating for the rights of marginalized communities living in informal settlements in Mombasa. It has expanded its reach to all coastal counties and its mandate today covers the areas of Land and Housing, Governance and Accountability, Cohesion and Transformation as well as Gender and Law.

[7]  The 5th Petitioner, Inuka Kenya Ni Sisi Limited is an organization born out of an ideology born of hundreds of honest conversations with hundreds of Kenyans across the country. It promotes good governance by urging Kenyans to know that their vote is their choice.

[8]  The 6th Petitioner, Africa Centre and Open Governance (AFRICOG), is an institution committed to addressing the structural causes of the crisis of governance in East Africa.

[9]  The 7th Petitioner, Constitution and Reform Education Consortium (CRECO) is a civil society consortium in Kenya working in the areas of constitutional awareness and reforms, and research, documentation and dissemination.

[10]  The Petition is supported by the affidavits of Davis Malombe, the Executive Director of the 1st Petitioner, sworn on June 21, 2022 and July 15, 2022. The gist of the Petition is that the decision by the 1st and 2nd Respondents not to use the print register in the identification of voters at the general elections on August 9, 2022 shall disenfranchise and bar eligible voters from exercising their right to vote either on account of lack of finger prints or technological failure. Citing Section 44A of the Elections Act and Regulation 69 of the Elections (General) Regulations, the Petitioners contended that the process of voter identification using a manual register is entrenched in our laws and that the 2nd Respondent cannot solely make a decision that the Commission shall not use of a manual register of voters. According to the Petitioners, the decision of the 2nd Respondent to completely abandon the use of a manual register of voters is contrary to statute and ought to be quashed instant.

[11]  The Petitioners further contended that the arbitrary decisions and actions of the 1st and 2nd Respondents contravene the rights of registered voters to vote in the General Elections; the right to legitimate expectation that the General Elections shall be conducted in strict compliance with the electoral law; and the right to free and fair elections as guaranteed under Articles 27, 38, 81 and 83 of /akn/ke/act/2010/constitution the Constitution}} of Kenya, 2010, unless urgently redressed by the Honourable court through the orders sought herein.

[12]  The Petitioners therefore seek the following reliefs:
a)An Order of Declaration that the 1st and 2nd Respondents shall in the conduct of the general elections on Tuesday August 9, 2022 provide manual register of voters in every polling station in Kenya to be used to identify voters in strict compliance with the provisions of Regulation 69(1) (e) of the Elections (General) regulations.
b)An Order of Declaration to quash the decision of the 1st and 2nd Respondents signified by the letter dated June 10, 2022 stating that the 1st Respondent shall not use manual register of voters in the general elections on Tuesday August 9, 2022.
c)An Order of Declaration that the 1st and 2nd Respondents have a Constitutional mandate to take all the necessary and logical steps to ensure that the Petitioners’ and the citizens’ rights under Articles 38 as read together with Article 83 (3) of /akn/ke/act/2010/constitution the Constitution}} are observed, respected, protected, promoted and fulfilled;
d)An Order of Declaration that the 1st and 2nd Respondents have a Constitutional mandate to take all the necessary and logical steps to ensure that administrative arrangements for the registration of voters and the conduct of elections, including the identification of voters during the August 2022 election is designed to facilitate, and not deny, an eligible citizen the right to vote in the election.
e)An order directing the 1st and 2nd Respondent to strictly comply with the provisions of the Constitution, statutory Act and subsidiary legislation in the conduct of the general elections on Tuesday August 9, 2022
f)Costs
g)Such other orders that the Honourable court shall deem just to grant.

[13]  The Petition is supported by the 3rd Respondent, the Attorney General who is the Chief Legal Adviser to the Government. The Petition is also supported by the 3rd Interested Party, the Kenya National Commission on Human Rights.

[14]  The 1st and 2nd Respondents opposed the Petition by a replying affidavit sworn on July 12, 2022 by Chrispine Owiye, the Director of Legal and Public Affairs of the 1st Respondent. In summary, it was averred that under Section 44 of the Elections Act, the first mode of identification of voters is electronically, by way of the Kenya Integrated Elections Management System (KIEMS), through the KIEMS Kit. A complementary system for identification of voters is established under Section 44A. The deponent further averred that the Petition is premised upon a hypothetical scenario and a misconception and misapprehension of the role of technology in the identification of voters at the polling station.