ROAD TO ELECTIONS 2017: SHOULD VOTING BE MADE COMPULSORY?

By Stan Oyunga (stanoyunga@yahoo.com)

INTRODUCTION

Despite setting a voter registration target of 18.2 million Kenyans for the 2013 General Elections, the Independent Elections and Boundaries Commission (IEBC), managed to register only 14.3 million voters (78.6 % of target), by 18th December, 2012. On the actualvoting day, 4th March, 2013, the turn-out was high, 85.71 %, (12.3 million votes cast in the Presidential Elections), but over 2 million registered voters did not vote.Hence total voter loss for the 2013 Presidential Elections was 6.1 million (not voted + not registered) according to the IEBC target of 18.2 million, which was 42 % of Kenya’s projected population of 43 million in 2013. This translates to 84 % of the adult population as adults make 50 % of Kenya’s population.Out of the projected adult population of 21.5 million in 2013, only 66.5 % registered as voters and 57.2 % actually voted in 2013. Hence about 5 million eligible voters (aged 18 and above) did not register as voters in order to take part in the 2013 General Elections. Some may have chosen not to register for personal reasons while others could not as they were missing valid identification documents or were waiting to be issued with ID cards.

Although the turn-out for the 2013 Presidential Elections was the highest in Kenya’s history, the incremental difference between the 2007 and 2013 Elections was only 56,353, compared with 3,845,030
between the 2002 and 2007 Elections.There were 6 basic reasons why eligible voters did not register as
voters for the 2013 General Elections:-

1) By choice-for personal, social or religious reason, including trauma after the 2007/2008 post-election violence.

2) Lack of identification documents e.g. identity card or passport.

3) Illness or physical impairment that made it difficult to access a registration centre before the deadline.

4) Detention by authorities due to imprisonment or remand.

5) Military or Para-military duties that restrict officers from registering (e.g. high insecurity zones).

6) Absence from Kenya during period of voter registration (including Kenyans in Diaspora except those in Uganda and Tanzania who were allowed to register/vote).

WHAT IS COMPULSORY VOTING?

Compulsory voting is a system in which electors are obliged to vote in elections or attend a polling place on voting day. If an eligible voter does not visit a polling station, he or she can be subject to a fine or custodial or non-custodial sentence (community service).

There are currently 31 countries that have laws for compulsory voting and 13 of these enforce these laws.

COUNTRIES WITH ENFORCED COMPULSORY VOTING

  • ARGENTINA (Not compulsory for 16-17 and over 70 years of age)

    AUSTRALIA

    BRAZIL (Not compulsory for 16-17 and over 70 years of age)

    CYPRUS

    ECUADOR

    LIECHENSTIEN

    LUEMBOURG (Voluntary for those aged over 70)

    MALAYSIA

    NORTH KOREA

    NAURA

    PERU (Voluntary for those aged over 70)

    SINGAPORE

    URUGUAY

    COUNTRIES WITH NON-ENFORCED COMPULSORY VOTING

    BELGIUM

    BOLIVIA

    COSTA RICA

    DEMOCRATIC REPUBLIC OF THE CONGO

    DOMINICAN REPUBLIC

    EGYPT

    FRANCE (Senate only)

    GABON

    GREECE

    GUATEMALA

    HONDURAS

    LEBANON (Men only)

    LIBYA

    MEXICO

    PANAMA

    PARAGUAY

    THAILAND

    TURKEY

  • With the exception of North Korea, Libya, Egypt and DRC Congo, all the above countries are known for have carried out recent free and fair democratic elections.

    WHY IT MAY BE NECESSARY IN KENYA

    The main reason for compulsory voting is that it is considered a civic duty, similar to taxation, civic duties, compulsory education or military service.It also helps to produce more stable governments with a higher degree of legitimacy and genuine mandate to govern due to the higher voter turn-out. The winning candidate and political party represent a majority of the voting population, not just the politically motivated who would have voted anyway.

    It also puts the onus on the country’s electoral body to ensure that all eligible persons are registered to vote and are issued with the relevant identification documents. Disenfranchisement of any class of eligible voter is not permitted. The common practice by candidates and political parties of bribing eligible voters to register and/or to vote will not be necessary.

    In Kenya’s case a large number of voters who had attained 18 years of age could not take part in the 2013 General Elections due to lack of identity cards, even when some had interim registration documents (“waiting paper”), they were not allowed to register and vote.

    Compulsory voting also reduces cases of vote rigging or manipulation as the high turn-out (usually between 90-95%) makes it difficult for ballot stuffing and vote tallying fraud as the votes cast cannot exceed number of registered voters for a polling station, Ward, Constituency or County.

    The results of the 2007 Presidential elections were disputed due to suspected ballot vote stuffing and voter tallying manipulation, which resulted in post-election violence that killed over 1,300 people and
    displaced 600,000. Compulsory voting would have made ballot vote stuffing minimal and voter tallying manipulation difficult.

    The following table clearly shows that voter turn-out for Presidential elections in Kenya since 1992, with average turn-out of 67.30 %, with 2002 having the lowest at 57.18% and 2013 the highest at 85.91%.
    Ironically, 2002 is still considered the best ever organised elections in Kenya’s history, when KANU’s 40 year rule was ended by the National Rainbow Coalition (NARC). But 4.4 million registered voters
    did not vote in the 2002 Elections and a massive 5 million eligible voters did not even register. That is a total eligible voter loss of 9.4 million (2 out of 3 Adults did not vote in 2002).

    In 2013, which had the highest turn-out of any election in Kenya’s history, 2 million registered voters did not vote and 7.8 million eligible voters did not even register. That is a total eligible voter loss
    of 9.8 million (45 % of Adult population did not vote in 2013).

    [table id=35 /]

    Source:www.idea.int

    ENFORCING COMPULSORY VOTING

    Amending the law to incorporate compulsory voting will not involving amending the 2010 Constitution as the right to register and vote by secret ballot is enshrined in Article 38 (3) (a) and (b).Only the Electoral Act, no. 24 of 2011 needs to be amended by the National Assembly, by amending section 3 (1) and (2) which currently reads:-

    “3. (1) An adult citizen shall exercise the right to vote specified in

    Article 38 (3) of the Constitution in accordance with this Act.

    (2) A citizen shall exercise the right to vote if the citizen is registered

    in the Principal Register of Voters.”

    After amending it will read as follows:-

    “3. (1) An adult citizen is required exercise the right to vote

    specified in Article 38 (3) of the Constitution in accordance with this

    Act.

    (2) A citizen is required to exercise the right to vote by being

    registered in the Principal Register of Voters.”

    Section 5 (3) relating to the registration of voters which currently

    reads as follows:-

    “(3) Any citizen of Kenya who has attained the age of eighteen years

    as evidenced by either a national identity card or a Kenyan passport

    and whose name is not in the register of voters shall be registered as

    a voter upon application, in the prescribed manner,”

    After amending it will read as follows:-

    “(3) Any citizen of Kenya who has attained the age of eighteen years

    as evidenced by either a national identity card or a Kenyan passport

    and whose name is not in the register of voters is required to be

    registered as a voter upon application, in the prescribed manner,”

    Section 56 of the Electoral Act that deals with offences related with

    registration of voters, can be amended to provide penalty for those

    who fail to register by adding a new subsection:-

    “56 (i) unless exempted by any regulation under this Act, any person

    liable to be registered as a voter under section 3 (2) and fails to apply

    for registration as a voter as required by section 5(3) of this Act;

    Commits an offence and is liable on conviction, to a fine not

    exceeding one million shillings and to imprisonment for a term not

    exceeding six years or to both; or if it is an offence under section 56

    (i), to a fine not exceeding ten thousand shillings or one month

    imprisonment in default.”

    Section 58 of the Electoral Act that deals with offences related to

    voting can be amended to provide penalty for those who fail to cast

    their votes during any elections or referendum by adding a new

    subsection:-

    “58 (q) unless exempted by any regulation under this Act, any person

    liable to vote under section 3 (1) of this Act and fails to cast his vote

    in any election or referendum, without reasonable excuse;

    Commits an offence and is liable on conviction, to a fine not

    exceeding one million shillings and to imprisonment for a term not

    exceeding six years or to both; or if it is an offence under section 58

    (q), to a fine not exceeding ten thousand shillings or one month

    imprisonment in default.”

    The penalty for both offences may seem high but it will act as deterrence and those who still do not want to register and/or vote will have an option of paying the fine. Voters who still do not want to vote despite being registered, due to personal or religious reasons, can still decide to leave their ballot papers blank as long as they place it in the respective ballot box. The vote will be treated as spoilt but he or she will not be committing an offence.

    The National Assembly can make regulations under the Elections Act to provide exemptions for adult citizens from being registered as voters and/or voting due to religious or special circumstances.Even if the offences are not enforced strictly, due to logistical and humanitarian reasons, the existence of the compulsory provisions will increase both voter registration and voter turn-out in future elections and can only be good for democracy in Kenya.

    © 2015 STAN OYUNGA

    THE TYRANNY OF NUMBERS: IS IT A DOUBLE-EDGED SWORD?

    By Stan Oyunga (stanoyunga@yahoo.com)

    INTRODUCTION

    It’s more or less certain, unless something untoward happens, that Uhuru Kenyatta and Raila Odinga will once again face each other in a Presidential Election on Tuesday, 8th August, 2017.
    It will be 6th Presidential Elections since independence, with the incumbent, Uhuru Kenyatta standing in his 3rd Presidential Election and Raila Odinga in his 4th attempt.
    Kenyatta is expected to stand under the new Jubilee Alliance Party (JAP) that was registered in December, 2014 to take over parties that were in the Jubilee Coalition, The National Alliance (TNA), the United Republican Party (URP), and other small parties.
    Odinga is expected to stand on the Orange Democratic Movement (ODM) ticket, part of the Coalition for Reforms and Democracy (CORD).
    Uhuru Kenyatta won the 2013 Presidential Elections by garnering 6.1 million votes (50.07%) against Raila Odinga’s 5.3 million (43.31%), out of the 12.3 million valid votes cast. The variance was 832,887.
    Although Odinga challenged the results by a petition in the Supreme Court, the Court upheld Uhuru’s victory by its landmark ruling on 30th March, 2013.
    Kenyatta’s victory was attributed to the so-called “tyranny of numbers”, where supporters of the Jubilee coalition had registered and turned up to vote in the 2013 General Elections in much larger numbers than those of the CORD coalition.

    Jubilee leaders are already boasting of winning the 2017 Presidential Elections, and even ruling Kenya for the next “20 years”, but can the Jubilee Alliance Party (JAP) repeat the 2013 victory, or will Uhuru Kenyatta make history by being the first incumbent President in East Africa to be defeated in a democratic election? Unless he wins, Uhuru will also make history by serving the shortest term of any Kenyan president, of only four years and four months. Kenya may also join Nigeria, Malawi, Somalia, Zambia, Senegal, Cote d’Ivoire and Madagascar as the only African countries where incumbents have lost in democratic elections since 2000.
    In order to get the answers to these questions, I used the Kenya Election Database, an Election Data Analysis and Strategic Election Planning software (visit www.kenyaelectiondatabase.co.ke ) and the double-edged sword of the “tyranny of numbers” can now be revealed.
    There is no doubt Uhuru Kenyatta won the 2013 Presidential Elections, notwithstanding that it could have gone for a run-off, if the automated vote tallying system had not failed.
    The analysis detailed below will show that a combination of better voter registration and voter turn-out in Jubilee strongholds assured Kenyatta victory despite Raila Odinga winning more constituencies and counties. The ODM became the largest single party in the 11th Parliament with 78 elected seats followed by TNA with 72. But due to the pre-election coalition agreement with the URP, which won 62 elected seats, the Jubilee coalition became the largest coalition in Parliament, hence the infamous “tyranny of numbers”.
    Despite have more potential voters in its strongholds than Jubilee, the CORD coalition failed to take advantage of this to ensure most were registered by 18th December, 2012 and turned-up to vote on 4th March, 2013.

    2013 PRESIDENTAIL ELECTIONS: ODM VS TNA

    In the 2013 Presidential Elections, Uhuru Kenyatta of TNA won in 135 out of 291 constituencies while Raila Odinga of ODM won 153. Musalia Mudavadi of United Democratic Forum Party (UDF) won only 3. Kenyatta obtained 5.2 million votes from constituencies where he was winner out of the total of 6.1 million votes he got in the 2013 Elections. Out of 135 constituencies where Kenyatta won, 790,519 registered voters did not vote and an estimated 1.4 million did not register (based on IEBC targets).
    Odinga obtained 4.4 million votes from the 153 constituencies where he was winner, out of total of 5.3 million votes he got in 2013 Elections. Out of the 153 constituencies where he was winner, 1.2 million registered voters did not vote and an estimated 2.3 million did not register (based on IEBC targets). (See Report 7A).
    Hence while Kenyatta had a voter deficit of 2 .2 million from his strongholds, Odinga had a voter deficit of 3.5 million.

    [table id=33 /]

    Out of the 135 constituencies which Uhuru won, 72 had more than 5,000 potential voters who did not register (see Report 7B-TNA Not Reg ranking). Most of his unregistered potential voters were from semi-arid counties like Mandera, Wajir, West Pokot, Baringo, etc.
    Out of the 153 constituencies which Odinga won, 131 had more than 5,000 potential voters who did not register (see Report 7C-ODM Not Reg ranking). This report shows the constituencies where Odinga won and ranked from the highest with unregistered potential voters who did not register to the lowest. Most of his unregistered potential voters came from Turkana, Garissa, Kwale, Kilifi and Trans-Nzoia Counties.
    Kenyatta had 65 constituencies where he was the winner, that had more than 5,000 registered voters who did not vote, most of who were in Nairobi, Kiambu and Nakuru counties which have a high population (see Report 7D-TNA Not Voted ranking).
    Odinga had 95 constituencies where he was the winner, that had more than 5,000 registered voters who did not vote, most of who were in Nairobi, Mombasa, Kilifi, Machakos, Kwale Counties (see Report 7E-ODM Not Voted ranking). Only Nairobi and Mombasa have a high population.

    ODM VS TNA: VOTER DEFICIT AND NOT VOTED BY COUNTY

    In the 2013 Presidential Elections, Uhuru Kenyatta of TNA won in 20 counties, Raila Odinga of ODM won in 26 and Musalia Mudavadi of UDF won in only 1.
    In Coalition terms, Jubilee had 18 counties which were its stronghold and CORD had also 18 (stronghold is determined by the winning candidate garnering more than 66.6 % of valid votes). In 10 counties each Coalition had almost equal votes (Fifty/Fifty counties). The only county that was not won by either Jubilee or CORD was Vihiga which was won by Mudavadi of UDF (Amani coalition). In Report 7F (Voter Deficit ranking by County) Jubilee is shown in red, CORD is in blue and Fifty/Fifty counties are in green (Amani’s single county is in brown). It is obvious that CORD counties have the worst Voter Deficit ranking with 2.1 million potential voters not registered, with Turkana, Bungoma and Kakamega ranked worst. Mandera is ranked on top but this because its 2009 population census may have been manipulated hence may not reflect what was on the ground. The same may apply to Turkana. The Counties with the lowest Voter deficit are Nairobi, Kiambu, Nyeri, Muranga and Kirinyaga (most in Jubilee strongholds).
    In Report 7G (Not Voted ranking by County), the Nairobi, Mombasa, Kilifi and Kakamega (most CORD strongholds) had the worst Not Voted ranking. Isiolo, Samburu and Lamu (all 50/50 counties) had the lowest due to their low population.

    TOTAL VOTER LOSS

    Overall a total of 5.6 million Kenyans in the strongholds of the 2 top candidates, did not take part in the 2003 Elections, out of which 2 million were registered to vote but did not for various reasons (no one has done any research as to why registered voters do not vote on the actual voting day), 3.6 million did not register at all for various reasons including lack of identity cards but some choose not to do so (boycott?) or lack of interest (Facebook generation?). Maybe voting needs to be made mandatory as in Australia, Turkey and Belgium. The difference between the 2007 and 2013 voter registration was only 42,662!

    [table id=34 /]

    CORD’S share of this potential voter loss was 3.1 million, which grows to 3.6 million when you add half of the fifty/fifty counties (475,000). Jubilee share was 1.6 million which grows to 2 million when you add the fifty/fifty counties (475,000).
    Hence CORD had a potential voter loss of 1.5 million (Not Voted + Not Reg) more than Jubilee, which would have been enough to give Raila Odinga victory in the 2013 Presidential Elections, if most had registered and/or voted.

    © 2015 STAN OYUNGA

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