Court allows diaspora Kenyans to vote in all elections

FRIDAY, JUNE 6, 2014

A voter casting her ballot during the March 2013 elections. The Court of Appeal has directed the electoral commission to register Kenyans abroad as voters and allow them to vote in all elective positions.

In Summary

• The judges ruled that the citizens’ rights to vote in an open democratic society can only be limited when there are justifiable reason based on human dignity, equality and freedom.
• The judges directed the Independent Electoral and Boundaries Commission (IEBC) to set up voter registration centers in the diaspora and to put in place infrastructure that will allow many Kenyans outside the country to register and participate in any election.

By PAUL OGEMBA

The Court of Appeal has directed the electoral commission to register Kenyans abroad as voters and allow them to vote in all elective positions.

Judges Roselyn Nambuye, Daniel Musinga and Kathurima M’Inoti ruled that the right to vote and to be registered as a voter should be enjoyed by all without distinction of whether a person is living in the country or in the diaspora.

The judges directed the Independent Electoral and Boundaries Commission (IEBC) to set up voter registration centers in the diaspora and to put in place infrastructure that will allow many Kenyans outside the country to register and participate in any election.

This means Kenyans living outside the country, including those with dual citizenship, can now participate in all elections.

During the 2013 General Elections, only diaspora Kenyans living in Uganda, Tanzania, Rwanda and Burundi were allowed to participate, but could only vote at the presidential level.

(Read: IEBC registers 2,000 Kenyans in EA bloc)

“In the circumstances, an order is made directing the electoral commission, the Attorney General, the Ministry of Foreign Affairs and the Immigration Department to adequately provide for progressive voter registration for Kenyans in diaspora for all elective positions,” ruled the judges.

The application to compel IEBC to register Kenyans in the diaspora was filed by New Vision Kenya, Kenya Diaspora Alliance, Dr Shem Ochuodho and Mr Gichane Muraguri.

The first filed the petition at the High Court seeking orders to compel the IEBC to register them as voters and for the commission to set up polling centres in Kenyan embassies to allow them participate in electing leaders for various positions.

The High Court however dismissed the application on grounds that it lacked merit since the IEBC had not violated any of their rights by refusing to register them as voters.

They then appealed against the ruling, arguing that the judge failed to appreciate that their right to vote was absolute.

The Appellate Court agreed with their contention, ruling that the right to vote is a fundamental right and that the petitioners were justified in moving to court to ensure that right is enforced.

“The right to vote for Kenyans living abroad can be achieved progressively. Electoral laws require the IEBC to respect those rights and follow regulations which will enable them participate in elections,” ruled the judges.

They added that the mandate of the state is to take appropriate legal, administrative and policy measures to ensure that the rights of those living in diaspora are achieved.

The judges ruled that the citizens’ rights to vote in an open democratic society can only be limited when there are justifiable reason based on human dignity, equality and freedom.

“We realise it would have not been possible for the commission to register those in the diaspora to vote in the last general election due to the time constrain but since registration of voters is a continuous exercise, the commission should ensure they don’t miss out in subsequent elections,” ruled the judges.

They added that the National Assembly should enact legislation which will provide for the modalities on how the Kenyans in diaspora will participate in the elections after being registered as voters.