Legal Identity and Voting

There was a General Election in my home country on 8 June 2017 and local elections at the beginning of May of this year. The general election was unexpected since the next one was not officially due until 2020. Everyone who had not was encouraged to register to vote. Elections and voting are as good as any place to start thinking about identity, rights and access to those rights.

Unpacking the link between legal identity and voting

The right to vote, and the right to stand as a candidate in an election is a right based on identity. Usually the requirement for voters (and candidates) is a link or an association with the country in which the election is taking place, e.g. in the UK, citizenship or three other types of ‘associations’ entitle you to vote in a general elections: A Commonwealth citizen living in the UK who has leave to remain in the UK or who does not require leave to remain in the UK; A British citizen living overseas who has been registered to vote in the UK in the last 15 years, An Irish citizen living overseas who was born in Northern Ireland and who has been registered to vote in Northern Ireland in the last 15 years.

Voting is, to an extent, a right based on documents – in this case to register to vote you need a passport (that shows citizenship or one of the three associations above) and a national insurance (NI) number.  The NI is the unique identifier that is meant to ensure your National Insurance contributions and tax are recorded against your name only. ¹

This seems pretty straightforward, although let’s think here about what a passport and an NI number really are. A passport in the UK context is a travel document and not a document that is needed as an ID, since ID cards are not issued in the UK. Equally, the NI number is used by those that are eligible to work, pay tax and national insurance contributions, or conversely, to obtain state benefits. I am not suggesting that there is anything controversial about the use of either of those documents as proof of entitlement to vote, but I do want to highlight how the documents evidencing the identity of a voter in the UK do not capture the full depth or scope of the voter’s identity.  Think of the eighteen year old voter who has not worked, does not receive benefits and has not yet travelled out of the country.

But what happens if the requirements are more onerous? Or you don’t have those documents for whatever reason? Or the system gets tougher to help combat voter fraud and then it kicks you out of the registration process because you cannot prove you are you?

Technical advances aside and instances of ‘computer says “no”’ examples, I want to use electoral registration to kick start a reflection on how the wider issue of the documentation of identity impacts those in developing countries. How much does identity and related documentation problems contribute to disenfranchisement?

Identity, voting and disenfranchisement issues

Let’s look at citizenship and the corollary of evidence by passport. There are in the UK three ways to acquire citizenship – blood, soil (jus soli) or a form of naturalisation/registration whereby you don’t have a link with the land by birth, or by blood, but by virtue of fulfilling other conditions, such as residence.

In order to claim the right to citizenship (and to vote in elections) you need evidence of being born somewhere or of your parents being citizens of country X. In the UK and in many other countries it is compulsory for births to be registered.

As Bronwen Manby succinctly explains:

“A person without identity documents, usually dependent on nationality, is unable to cross international borders through regular channels. The right to vote or to run for office in national elections is restricted to citizens in most countries. As requirements to show official identification multiply, a person without a recognised nationality is increasingly unable to function in the modern world.” ²

But what if less than 45% of Sub-Saharan African children under 5 years of age have been registered? ³

How do you show, as an adult where you were born, where you lived, what your entitlement to voting is, if at the start of your life no one recorded your existence? And that is just birth registration. Even if your birth is registered, you need to have some way of obtaining citizenship, some process or law which tells an applicant what the criteria are and how to satisfy them (i.e. back to land, blood residence and documents). The UNHCR estimates that there are some 10 million stateless people in the world and many other people have unclear national status because although not stateless, they are nonetheless undocumented. ⁴

Many countries in the continent of Africa have no provisions setting out a child’s right to nationality or a path to citizenship for those with foreign-born parents or who are themselves foreign-born and only a handful of African countries automatically confer citizenship from birth to those born on their territory in any event. Half of Africa’s states even allow revocation of a person’s birth nationality.

Gender too can play a role. For example in In Egypt, women face more obstacles than men in obtaining a national ID because of a lack of a birth certificate, which is a requirement in national ID registration. ⁵

Minorities too sometime face higher barriers to registration of their identity or their nationality. For example, people from certain communities in Kenya need to fulfil sixteen requirements before they can obtain identity cards.  Kenyans from other areas of the country on the other hand are not subjected to as many requirements and therefore face a lower hurdle. ⁶

The problem with lack of documentation to evidence entitlement when it comes to elections is not that citizenship is necessarily a flawed way to determine who is entitled to vote in a state’s elections. Rather the difficulty of evidencing citizenship, or sometimes being excluded from citizenship due to restrictive laws ⁷ can mean that being excluded on those grounds continues the cycle of the voiceless remaining voiceless and precludes the very possibility of representation at the national or local level that could break that cycle.