The High Court has ordered the Independent Electoral and Boundaries Commission to allow Kenyans in Diaspora to use either national identity cards or valid passports to register as voters.

m issued the temporary orders pending hearing and determination of a petition filed by activist Okiya Omtatah challenging provisions of the Elections (Registration of Voters) Regulations, 2012.

Regulation No.37 prohibits the use of national identity cards to register citizens in Diaspora as voters.

“Pending hearing and determination of the petition, a Kenyan citizen residing outside the country shall apply for registration as a voter upon production of a valid Kenyan passport or original national identity card,” the order.

Public interest

Judge directed IEBC to forthwith accord an opportunity to Kenyans residing outside the country to apply for registration as voters upon production of valid passports or original national identity cards.

On Monday, IEBC chairman Wafula Chebukati announced the voter registration exercise for  Kenyans in the Diaspora has so far enrolled 1,054 new voters, as well as 1,072 requests for transfer and 806 applications for change of particulars.

Omtatah in his petition to invalidate the said regulation, claims it violates the Constitution, the Elections Act, No. 24 of 2011, Registration of Persons Act, Interpretation and General Provisions Act and Statutory Instruments Act, No. 23 of 2013.

Electoral agency, during the Kenya Editors’ Guild 4th Annual Convention held in Naivasha last December, announced that from January 15 to 30, it will enroll Kenyans in select countries to take part in the August 9 General Election.

According to Omtatah, if the court does not intervene, IEBC will lock out many eligible Kenyans in the diaspora from registering as voters.

“The matter is also of extreme public interest because the issues complained of herein clearly contravene the Constitution, and are contrary to public policy,” Omtatah says in court documents.

Activist had sued IEBC and the Attorney General last year.

The AG filed grounds of opposition to the suit claiming that the matters raised by Omtatah had been argued and determined in 2017.

According to the AG, the right to vote is not absolute and the same may be subjected to limitations as may be provided for in law.

 “The regulation being challenged has previously been subjected to proceedings before a court of competent jurisdiction and the same has been held to be constitutional,” claimed the AG through State Counsel Jackline Kiramana.

Conservatory orders

It was the AG’s contention that Omtatah did not indicate how his constitutional rights had been violated.

“Both the petition and application are defective in form and in substance, and are therefore, unmerited and brought in bad faith,” claimed the AG.

IEBC also opposed the grant of conservatory orders, arguing regulation 37 is not in conflict with section 5(3) of the Elections Act. Electoral agency further argues that Section 5(3) of the Elections Act provides for first, evidence of eligibility for registration as a voter through the national ID or passport.

“Secondly it states that any citizen with the possession of either of the documents shall be registered as a voter upon application in the prescribed manner to the commission,” IEBC  says in court documents.

Polls body also says the conservatory orders have been brought with undue and unjustifiable delay as regulation 37 has been in existence since 2017.

“Any unjustified disruption of the commission calendar of events is likely to affect the extent to which it conducts free and fair elections in the forthcoming polls,” argued IEBC.

Justice Mrima directed respondents to file and serve their responses within 14 days highlighting submissions on March 21.