Voting a basic right and civic duty that we should all fulfil

A man registers as a voter in Nakuru last week. The electoral commission had planned to register 18 million voters by the close of the exercise today, a target that proved elusive. File

Kenya will be going to the polls on March 4, 2013. This will be the first general election under the new Constitution that was passed and promulgated on August 27, 2010. The Constitution provides in Article 1(2) that the people may exercise their sovereign power either directly or through their democratically elected representatives. Article 3 further provides that every person has an obligation to respect, uphold and defend the Constitution.

The mandate of ensuring that Kenya conducts a simple, transparent, fair and independent election is with the Independent Electoral and Boundaries Commission (IEBC). The IEBC has to register all eligible people. A person qualifies for registration as a voter at elections or referenda if he is an adult citizen, is not declared to be of unsound mind and has not been convicted of an election offence during the preceding five years, according to article 83(1) of the Constitution.

The IEBC projected to register 18 million people using the biometric registration kits to facilitate the next general election. Recently, with the deadline approaching, IEBC had to reduce its expectation to about 12 million voters following voter apathy. Kenya has about 20 million eligible voters and more are becoming eligible each day, but the number of registered voters is worrying and causes concern.

The IEBC has used millions of shillings to encourage people to register through the media, billboards, politicians, popular personalities, and even going to the extent of placing voter registration near entertainment spots.

In some countries, the citizenry have the right to vote and also a civic duty for the eligible citizens to register. These countries have made it mandatory for all their eligible citizens to register and even gone further to impose sanctions on those who do not do their civic duty.

Compulsory voting is not a new concept. Some of the first countries that introduce mandatory voting laws were Belgium in 1892, Argentina in 1914 and Australia in 1924.

The issue at hand is whether registration in Kenya and voting should be made a mandatory civic duty, where every eligible citizen should cast his ballot during an election and referenda?

With the recent census conducted in Kenya, it showed that there area about 40 million people with about 54 per cent being adults which translates to about 21 million eligible voters.

To get many people to register, an amendment Bill by Gem MP Jakoyo Midiwo had sought to allow Kenyans with provisional identity cards to use them to register.

Most MPs during the debates on the Elections (Amendment) Bill (Bill No. 72 of 2012) argued that blocking Kenyans with waiting slips would be a violation of their constitutional right.

Attorney-General Githu Muigai, said Kenyans would use the provisional identity cards to register but not to vote because the applications for national identification cards will have been processed before the poll.

Advocates of mandatory voting argue that decisions made by democratically elected governments are more legitimate when higher proportions of the population participate.

If democracy is government by the people and for the people, then it is every citizen’s duty to elect their representative.

With secret ballot, it is not possible to prove who has or has not voted so this process could more accurately be called “compulsory turnout” because voters are required to show up at their polling place on the election day.

In the Australin voting system, all citizens over the age of 18 years, except those of unsound mind or those convicted of serious crimes, must be registered to vote and show up at the polling station on the election date. Australians who do not vote are subject to fines although those who are ill or otherwise incapable of voting can have their fines waived.

Compulsory voting in Australia was adopted in the State of Queensland in 1915 and subsequently spread nationwide in 1924. With Australia’s compulsory voting systems comes additional flexibility for the voter; elections are held on Saturdays, voters can cast their balots at any polling place, and voters in remote areas can vote before an election.

Voter turnout for those registered to vote was as low as 47 per cent prior to the 1924 compulsory voting law. In the decades since 1924, this has hovered around 94 per cent to 96 per cent.

From Australian Electoral Commission experience from 1924, compulsory voting has its merits and demerits. For those in favour of compulsory voting argue that:

Voting is civic duty comparable to other duties citizens perform, for example taxation, compulsory basic education or jury duty.

Parliament reflects more accurately the “will of the electorate “if voted in with the majority of the citizenry.

Governments must consider the total electorate in policy formulation and management.

Candidates can concentrate their campaign energies on issues rather than encouraging voters to attend the poll.

The voter is not actually compelled to vote for anyone because voting is by secret ballot.

Arguments used against compulsory voting are:

It is undemocratic to force people to vote for it is an infringement of their liberty.
The “ignorant” and those with little interest in politics are forced to vote.
It may increase the number of bad votes at the election.
More resources have to be used to determine whether those who failed to vote have “valid and sufficient” reasons.
Whatever the case, there is no regulation that will get 100 per cent nod from the people. There will be objection and support to it.

Be it as it may, there is need to have a mandatory voter registration and voting in Kenya for it is a fundamental right to cast your ballot under the Constitution and which brings out the aspect of civic duty enshrined in the Constitution as provided in Article 3(1) that every person has an obligation to respect, uphold and defend this Constitution of Kenya.

The writer is an advocate of the High Court of Kenya

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Note: The results are not exact but very close to the actual.