Kenya: the domestic and international context of registering to vote

The recent elections in Kenya have been widely reported, especially in light of the allegations of fraud and hacking. But I want to consider them from the point of view of voter eligibility in Kenya, which plays into the bigger issue of ID cards and identity in Kenya. The domestic and the international legal context are both relevant.

Domestic law

Let’s look first at the domestic provisions which deal with the right to identity and voter eligibility in Kenya.  Under Article 38(3) of the 2010 Kenyan Constitution every adult has the right to be registered as a voter and to vote. No unreasonable restrictions can be placed on this right.  Under Article 3 of the Elections Act 2011, a voter needs to be registered in the Register of Voters. The documents required for registration under Article 5 of that Act are either a national identity card or a Kenyan passport. In order to vote in Kenya, individuals must present an ID document. That document must be the document used at the time of registration.

The Registration of Persons Act provides for the registration of persons and for the issuance of identity cards to Kenyan citizens who have attained the age of eighteen years.  And under Article 12(1) of the Constitution, every citizen is entitled to:

“The rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution” and to “A Kenyan passport and any document of registration or identification issued by the State to citizens”

The Kenyan Human Rights Commission in its 2007 report on ID cards in Kenya ¹ explained the importance of the ID card as a state identification tool:

“A National Identity Card represents ‘proof’ of Kenyan citizenship without which an individual cannot vote, purchase property, access higher education or even obtain employment; further, those without the document find themselves victims of arrest and extortion by the police on spurious grounds.”

The report also highlights the flip side of not having such a ‘proof’ of citizenship:

“hindrance to easy access to critical documents like the Identity Card which enhance the enjoyment of rights and freedoms of citizens implies violation of these very rights.”

Current estimates as to how many Kenyan citizens have an ID card are difficult to verify.  According to a 2016 report from the World Bank Identification for Development (ID4D) Identification Systems Analysis ² some 24 million cards have been issued to date, with an additional 1.2 million registrations each year. However, the number of active holders cannot be determined since the records may contain some duplicates. Poor death registration makes it difficult to assess how many live adults have an identity card.  A really useful publication setting out how to go about obtaining a much needed ID card and the importance of it is Namati’s recent publication ‘Citizenship Rights in Kenya’ ³.

International law

Universal legal identity is an important cross-cutting goal in the UN’s 2030 Agenda for Sustainable Development. It is a key component of Sustainable Development Goal (SDG) 16.9. See my previous post on this issue here. The UNDP Commission on the legal empowerment of the poor fleshes out the goal by arguing that everyone has a fundamental right to a legal identity and should be registered from birth ⁴.

The African Charter on Human and Peoples’ Rights provides for the right to recognition of a person’s legal status and has language throughout the Charter that affirms nationality as a matter of right.  Similarly, the Universal Declaration of Human Rights (UDHR) in Article 15 provides everyone with a right to a nationality.  The International Covenant on Civil and Political Rights (ICCPR) in Article 25 provides citizens with the right to vote. Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination requires parties to agree to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law. The enjoyment of political rights is also guaranteed under Article 5(c ) and

“in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service”.

The 2002 OAU/AU Declaration on the Principles Governing Democratic Elections in Africa states that:

“Every citizen has the right to fully participate in the electoral processes of the country, including the right to vote or be voted for”.

Problems with obtaining an ID card

In order to register to vote, and for voter eligibility in Kenya, one document is key: the national ID card. Election law permits a Kenyan passport as an alternative to the ID card when registering to vote. However, a quick look at the requirements for documents in support of a Kenyan passport application shows that an ID card is but one of the documents needed in support of the application. It is potentially possible to obtain a Kenyan passport without an ID card, but it is not clear how – the guidance appears to be ‘write a letter explaining why not’, but without saying what explanation would be considered satisfactory. Research from the Carter Foundation also confirms that an ID card is a pre-requisite of obtaining a Kenyan passport:

“Since a national ID card is necessary in order to obtain a passport, effectively one must have a national ID card in order to register to vote.” ⁵

But is the reality of obtaining an ID card as simple as just complying with the requirements for citizenship under the Constitution? Evidence from various official and semi-official reports, as well as much anecdotal evidence suggests that the requirements, both substantive and procedural, which are imposed on applicants can make it difficult for citizens of Kenya to obtain the legal identity they so need.  This obviously affects individuals on an individual level, such as in that individual’s right to be registered to vote in an election.

The World Bank Identification for Development (ID4D) Identification Systems Analysis report ⁶ found that registration is high in the more developed and urban areas, but lower in the poorer and more arid border counties, particularly in the North. The World Bank relies on the Hunger Safety Net Program (HSNP) in four poor Northern counties. The programme found that around 20% of target households did not have one or more adults with an ID card making the individual registration rate. This number is speculative in part because there is a lack of clarity on whether all individuals qualify for Kenyan citizenship and are therefore entitled to a card. The report does consider other registration exercises, such as the one involving the World Food Program which suggest that the percentage of adults without an ID card might now be lower than found by the HSNP. The exact percentage is still difficult to ascertain.

Hurdles identified in the media and in reports like that of the Open Society Justice Initiative ‘Legal Identity in the 2030 Agenda for Sustainable Development: Lessons from Kibera, Kenya’ report ⁷, or the Kenyan Office of the Ombudsman report into the Crisis of Obtaining Identification Documents in Kenya, August 2015 abound. Issues that arise include vetting of some groups, such as the Nubians and Kenyan-Somalis (more on which in my next post), travelling long distances either to register or to collect an ID card, the cost of travelling and of the ID card and the need for urban youth to go back to the lands of their fathers or grandfathers and obtain a letter of introduction from a local chief ⁸

The lower rates of ID card registration and uptake in some areas of Kenya are suggestive of a lack of equal treatment for individuals from minority groups within Kenya or from specific ethnic groups when it comes to voter eligibility in Kenya.  In summary: No ID, no voter registration. No voter registration, no vote and no voice.

In my next blog post I will focus on evidence that the requirements for some ethnic groups and minorities are much more onerous than is set out in the Constitution or in the Registration of Persons Act.