In Summary
  • The blueprint for managing a plebiscite is written in the Election Laws Act.
  • The current form of the Election Law puts the country back to where it was pre-2007 election.

Punguza Mizigo Bill and the anticipated Handshake Bill…one or both of them are likely to result in a referendum before the next general election in 2022.

IEBC is of course expected to manage the referendum the usual way they manage the general election.

A referendum bill is expected from Parliament to clarify or operationalise finer details of how IEBC would manage a referendum – but such a bill would not be very different from the mother bill called the Election Laws Act.

Indeed IEBC can actually execute the referendum elections without a referendum bill in the same spirit it did during the 2010 referendum that gave us the new constitution.

AMENDMENTS

In other words, the blueprint for managing a referendum is written within the existing Election Laws Act.

This Act, however, has since 2016 undergone very significant amendments that were made with a lot of malice against technology driven elections.

First to go was the joint ICT Technical committee on electronic aspects of the election process.

It had representatives from political parties and professional bodies with the Commissioner in charge of ICTs at IEBC as the Chair.

After a few sittings, some Kenyan somewhere petitioned some magistrate who reviewed the petition and was convinced and subsequently ruled that such a committee is illegal.

Apparently inviting stakeholders into the server rooms of IEBC before elections is illegal, but inviting them into the same server room - as directed by the Supreme Court – after elections is quite fine and in order.

Anyway, prior to the 2017 elections, parliamentarians kicked off another storm with the government’s majority party proposing amendments to eliminate the need for voters to be identified biometrically using fingerprints.

MENIAL JOBS

The argument then was that some voters – particularly those doing menial jobs such as quarry workers or tea pickers – may have unreadable fingerprints by the time they line up to vote.

A strict requirement to have them identified through the fingerprints method would therefore deny them a constitutional right to vote.

After much push and pull, the minority had their say, but majority had their way and the Election Law was amended to allow IEBC to accept voters to be identified in other complimentary ways that do not involve biometrics.

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