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Introduction
As the IEBC selection panel, led by Dr. Nelson Makanda, embarks on the search for a new Chairperson and commissioners, it is crucial to recognize that the effectiveness of a country's electoral system and the strength of its electoral laws are key indicators of a robust democracy. With devolution deeply embedded in Kenya’s governance structure, elections have never been more critical to democratic governance than they are today. They empower voters to choose their leaders and hold them accountable, ensuring that democratic governments remain responsive to the people's will, especially at the county level in the devolved governance structure
The emphatic adoption and subsequent promulgation of the current constitutional dispensation on August 27th, 2010, signaled the beginning of a slew of institutional and legal reforms. The provisions of the Constitution themselves altered the institutional and legal underpinnings of electoral governance in the country as previously understood. It is not to be forgotten that the electoral sector in Kenya has seen it all, from the perspective of inequality, voter manipulation, and outright rigging, to name but a few.
While it is true that the majority of legislation relating to elections is commendable, the answer as to whether these laws have transformed Kenya's electoral remains to be seen, let alone felt. I say this, given the fact that our electoral laws have failed to address the voter importation menace, which continues to cripple the very essence of democracy. Voter importation refers to the practice of eligible voters either transferring their vote from where they had initially registered to another voting jurisdiction with the sole aim of voting for a particular candidate or party. There is no doubt that voter importation waters down the primary purpose of elections. Worse off, it pains to learn that voter importation is not even an electoral offense as per the election laws in Kenya.
Voter Importation in Kenya
In the run up to 2017 and 2022 elections, IEBC identified Kiambu, Murang'a, Meru, Kajiado, Narok, Bomet, Nairobi, Busia, Bungoma, Siaya, Machakos, and Kakamega counties as having the highest prevalence of the vice. Since the beginning of devolution, Nairobi has seen this trend perhaps more than any other region. This is due to the high stakes attached to its political offices, as well as the fact that it receives the highest revenue allocation from the National Treasury famously themed as, “one man, one vote, one shilling.” In 2017, for example, nearly 500,000 voters were transferred from their previous polling stations in order to vote in Nairobi County. The majority of the voter movements originated from Kiambu County just in the name of wanting to have a governor from the ruling party. The residents of Nairobi can attest to just whom they got for a governor.
Factors fueling voter importation
The introduction and subsequent application of technology necessary in undertaking elections is the primary driver for the rise in voter importation in Kenya. In the periods between 1963 and 2007, best described as electoral analog years, it was easy for politicians to uncouthly and unapologetically rig elections because the electoral process was manual, with technology largely absent. The introduction of biometric voter registration and electronic tracking of electoral materials has vastly reduced traditional forms of rigging that were witnessed prior to the current constitutional dispensation. In fact, politicians have come to terms with the fact that falsifying election results in order to emerge victorious is becoming counterproductive, more so since the judiciary has annulled many elections that violated the Constitution and election-related statutes. Politicians have been forced to adapt by taking into account the old adage, Necessity is the mother of invention. As a result, they have resorted to bribing voters with money, food, clothing, and other souvenirs in order to persuade them to register as voters in the electoral zones of their choice to increase their chances of winning.
Another contributing factor is politicians' desperation to win elections at all costs. Politicians engage in vote importation in the hopes of gaining enormous power and wealth if they are elected. Many politicians are also concerned that if they do not participate in the act, their opponents will do so and gain an electoral advantage. As a result of this dilemma, vote buying has become a sort of race in Kenya, particularly among the "big" political parties. As part of their secret weapon against opponents, some aspirants are spending millions of shillings to help voters move their polling stations to where they will help them win such seats. While counties with governor aspirants are the most affected, parliamentary and county assembly races are not far behind.
Participation in Electoral process in Kenya
According to the Constitution, every adult citizen has the right to be registered as a voter, with no unreasonable restrictions. It also states that a person is eligible for registration as a voter in elections or referendums if he or she is an adult citizen, of sound mind, and has not been convicted of an election offense in the previous five years.
Section 7 (1) of the Elections Act provides that, “Where a voter wishes to transfer the voter’s registration to an electoral area other than the one the voter is registered in, the voter shall notify the Commission, in the prescribed manner, of the intention to transfer the registration to the preferred electoral area not less than ninety days preceding an election.” The Act also requires the IEBC, upon receipt of the notification, to transfer the voter's registration information to the preferred constituency's register no later than sixty days before the election.
A closer examination of the Election Offences Act reveals that the Act is primarily concerned with illegalities committed on material Election Day. Section 12 of the Act reveals that it focuses on the transportation of electors during the polling day and not the importation of voters. The Act does not classify voter importation as a crime, let alone mention it. This failure of the election-related acts to classify voter importation as a crime means that it is not illegal for politicians to facilitate registered voters to transfer their votes from their original voting jurisdiction to a new one so as to tilt the scale of balance.
Impact of voter importation in the realization of good governance
Voter importation promotes political corruption because only those who are capable of engaging in the vice will dominate the leadership spectra, effectively shutting out credible and popular contestants with limited resources. It also jeopardizes elections' credibility, legitimacy, and integrity. As a result, conscientious people are discouraged from participating in electoral politics, and citizens lose faith in state institutions.
Second, voter importation has a history of perpetuating bad governance in the electoral zones in question. It jeopardizes not only the well-being of those who sold their votes for immediate gratification, but also the future of those who did not sell their votes but are inevitably exposed to bad governance as a result of such a sham. Many people will suffer unintended consequences for every vote traded, especially if the traded votes determine whether the election is won or lost. For example, where I come from, it is widely reported that politicians reward children and relatives of imported voters with education bursaries at the expense of local students as a "thank you." This in turn means that the students in the affected constituency either miss out or get inadequate fund to further their education
Way forward
Having observed how voter importation erodes good governance aimed at ensuring efficient service delivery, it is thus important that moving forward, the IEBC, together with like-minded organizations such as civil societies, should undertake a nationwide study on the impact of voter importation in the realization of good governance. The study is of essence because our voting laws should put emphasis on who "has a stake" in the electoral jurisdiction. The "stake" in this case means that the said voter is directly affected by the choice of the leader he chooses. The findings from the study should help IEBS persuade the IEBC through Parliament to amend the Election Offences Act by criminalizing voter importation. Further, the Election Act should be amended to make it tough on voters seeking to transfer their votes. In doing so, IEBC should be keen on the intention of the voter in seeking to transfer his vote. The grounds forming “intent” should be persuasive and backed with evidence where possible so as to discourage voter importation.
