Diaspora Voting Framework Proposal - KEDASA

KENYAN Diaspora IN SOUTH AFRICA

Reg. No. 098-986-npo

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www.kedasa.org | [email protected]

Hon Ahmed Issack Hassan

Chairman of the Independent Electoral and Boundaries Commission (IEBC)

University Way, Anniversary Towers, 6th

Floor

NAIROBI, KENYA

Date: June 4, 2012

Dear Hon. Hassan

We invite you to consider proposals below on principles and practices that should be

incorporated in the Kenya Diaspora voting framework. We have also suggested approaches to

implement the principles in South Africa.

The proposals have been prepared by the Kenyan Diaspora living in South Africa through a

proactive consultative and participatory process. In addition, reference was made to practices

adopted by countries that allow Diaspora to participate in home country elections.

We stand ready to provide clarification and we thank you in advance for considering our

proposals. We look forward to an opportunity to contribute in designing the framework.

Yours,

________________________ ________________________

Chairman Task Team Leader

KEDASA



Diaspora voting Framework - Kenyan in South Africa

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General comments

We are thrilled by the historic Kenya Constitution that allows us to participate (vote) in the

country’s general elections. The democratic voting right provides us - thousands of Kenyans

across the world - with another opportunity to contribute and make a difference in the future of

Kenya.

We acknowledge that designing and implementing a voting framework for all Diaspora that

ensure free, fair and credible elections will undoubtedly be challenging and complex. There are

many factors that need to be considered: the number and location of Diaspora in different

countries; legal and socio-political factors of countries where Diaspora are located; institutions to

be involved in the voting process; technical and operational requirements to allow effective

voting; and financial implication.

We have engaged in a proactive process with the Diaspora in South Africa to develop the

following principles that would assist you in designing the complex Diaspora voting framework

that would support seamless voting. We have also referred to studies done on Diaspora voting

and interviewed officials involved in such processes. In particular we made reference to 2007

report, Voting From Abroad: The International IDEA Handbook, (International Institute for

Democracy and Electoral Assistance and The Federal Electoral Institute of Mexico, 2007), that

noted that external voting rights for Diaspora members are allowed in ‘115 countries globally.

The proposals focus on:

i. Who should vote?

ii. The method of voting;

iii. The type of elections the Diaspora should participate in; and

iv. Practical implication issues on where to register and vote, who should be electoral

officers.

We are of the view that the Framework to be used for 2013 elections should evolve and be

revised before the next elections to incorporate lessons to be learnt during the 2013 elections and




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also consider other international good practices. It will be important for IEBC to ensure that the

proposal stand the legislative framework in the country.

Specific proposals

1. Who should vote?

Proposal 1:

All Kenyan should be eligible to vote if:

a. over 18 years;

b. hold legal identification– Kenyan passport or identity document;

c. a Kenyan Citizen;

d. have lived in a country for more than 6 months before the legislated voter registration

deadline; and

e. is not out of Kenya for more than 20 years.

Countries that allow Diaspora to participate in national elections consider different factors to

determine who is eligible to vote. All voters should meet the requirements of voters in the home

countries: which are items (a) – (c) in the proposal above. In addition, there is inclusion of

“special requirements’ on those who are allowed to vote while abroad which generally focus on

nature and time of stay abroad1. The existing studies indicate that these special requirements

serve as check and balances principled on voters information and legitimacy. The voter should

be a citizen of Kenya: an aspect that links the voter to home country. The voters who are outside

a country for long may not have adequate information to make a decision on whom to vote for.

Also they don’t bear similar consequences to those in the home country as they may have already

disengaged themselves from the country affairs. We acknowledge that more debate is required

on the last factor – number of years one needs to be out of the country in order to be allowed to

vote as it is not clear cut.

1 Martin Russell, Diaspora engagement through representation, P 5




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The following extract from “Voting from Abroad”: The International IDEA Handbook 2007

represents countries that have special requirements for Diaspora voting: factors that we

considered in determining proposal 1 above.

Eligibility contingent on activity abroad2

Ireland: External voting allowed for those abroad involved in government service.

Israel: External voting allowed for those abroad involved in government service.

India: Non-resident Indians citizens who are employed by the government of India in a

post outside India, including military personnel, are eligible to be registered as electors.

Malaysia: External voting allowed for those abroad involved in government service and

those studying abroad.

South Africa: External voting allowed for diplomatic staff and temporarily abroad

registered voters3.

Eligibility contingent on time abroad

Australia: Electors must satisfy the needs of domestic electoral registration. Registered

electors who leave and intend to return within six years can apply to be registered as

‘eligible external electors’ and retain the right to remain on the electoral register and vote.

A twelve-month extension can be indefinitely pursued if outside more than six years.

Canada: External voting allowed only up to a maximum of five years abroad once there

is an intention to resume residence in Canada.

Chad: Voter must be enrolled in the consular registry six months before the beginning of

the electoral process.

Cook Islands: External voting allowed only up to a maximum of 4 years except for those

abroad for medical care or education.

2 Fierro, Gratschew, and Morales, ‘External Voting’, p.18–20

3 The South Africa (SA) Constitutional Court ruled in 2009 ( the Richter vs Minister of Home Affairs) that all SA

Citizens who are registered to vote may vote externally provided that they are indeed registered voters in SA and

have notified the Chief Executive Officer of IEC of SA that they intend to vote in an election and where they

intend to vote abroad.




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Germany: External voting allowed only up to a maximum of 25 years abroad.

Guinea: External voting allowed only up to a maximum of 25 years abroad.

Isle of Man: Only a diaspora members staying for 1 year abroad are allowed to vote.

Mozambique: Voter must spend at least one year abroad before beginning registration as

a voter abroad.

New Zealand: External voting allowed only up to a maximum of three years abroad.

Senegal: External voters must spend at least six months in the jurisdiction of a diplomatic

representation abroad.

United Kingdom: British citizens abroad are allowed to register and vote as external

electors if their name was previously on the electoral register for an address in the UK

and no more than 15 years have expired between the qualification date of that register

and the date on their application to register as external elector.

Question remains: should illegal immigrants be allowed to vote? We believe that illegal

immigrants should also be allowed to participate in the voting process as the opportunity will

ensure that any Kenyan is not discriminated. The media articles indicate that there are large

numbers of illegal migrants - potential voters - who should not be overlooked, considering that

they meet the criteria for voters laid above.

2. Method of voting

Proposal 2: The voting in person at polling station method should be used for 2013 General

elections with provision to also offer remote electronic voting from 2018 General elections.

Generally, there are three external voting options:

(i) Voting in person at an external polling site;

(ii) Remote voting by post, fax or some form of e-voting; and

(iii) Voting by proxy.




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Voting in Person

The voters present themselves in person at the polling stations: all voters at the polling station

will normally be voting in the same election. This approach allows supervision of the voting

procedure which ensures achievement of electoral process – security, transparency and

credibility of the voting process. On the other hand, the approach has draw backs especially it

would require the voters to travel long distances to the polling stations if only few stations are

opened in a country.

“For example, in the 2005 elections in Iraq, the Out of Country voting program

facilitated voting in 36 cities in 14 countries. Similarly, Senegal’s external voting in 2000

was limited to 15 countries. The Dominican Republic chose cities in five countries for

external voting in the presidential election of 2004. Electors had no choice but to attend

one of these locations to register their vote.4”

Remote Voting

Remote voting involves postal, fax or e-voting. Postal voting is the most common approach.

Postal voting increases access by majority of the voters to participate in the process (increase

voter turn-out) and reduces voter costs. However, it increases possibilities of fraud which require

the Government to introduce many mitigating measures that add to electoral cost to the

Government. The approach requires a lot of planning to successfully meet the electoral

timetable: when to print the ballot papers and time needed for postal services to send the ballot

papers to the Diaspora and return them to central voting centre in Kenya after voting by the

Diaspora. The reliability of postal services in many countries is an issue which questions the

credibility of the process.

E-voting (electoral voting) is also gaining momentum. It requires a well designed and secure

information system infrastructure.

4 Martin Russell, Diaspora engagement through representation, P 7




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Diaspora Voting by Proxy

Proxy voting is considered to cause least challenges to designers and the process. Voters are

allowed to choose proxies who are in-the-country and able to vote on their behalf on polling

stations where registered. The option also has disadvantages.

Countries have adopted and offer different options for Diaspora members. Some offer one

method only while other offers a combination of options. The main consideration in deciding

the option is the cost and how to incorporate the external votes in the country system. Since

it is the first time that Kenya will be allowing Diaspora to participate in the general elections, we

propose adoption of voting in person approach in 2013 as it would allow transparent and credible

voting process. There is limited time to allow adoption of the other approaches. Lessons learnt

should be used to devise the approach that should be used in future elections. In particular, a

reform should be initiated to design an electronic based technological voting model for use in

next general elections. Such an infrastructure would allow many eligible Diaspora members to

register and vote electronically. We acknowledge that design of such a model would be costly

and therefore the Government should plan and appropriately budget for the cost.

The table 1 below is an extract from the 2007 report that present the approaches adopted by

different countries which indicates that most of the countries adopt personal voting approach.

Table 1: Approaches adopted by countries towards implementing voting rights5

Voting method Country

Postal voting only Austria, Bangladesh, Bosnia and Herzegovina, Canada, Denmark,

Falkland Islands, Fiji, Germany, Gibraltar, Guernsey, Ireland,

Italy, Jersey, Lesotho, Liechtenstein, Luxembourg, Malaysia, Isle

of Man, Marshall Islands, Mexico, Norway, Panama, Switzerland,

Tajikistan, Zimbabwe

5 Fierro, Gratschew, and Morales, ‘External Voting’, p. 23–24.




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Voting method Country

Personal voting only Afghanistan, Angola, Argentina, Azerbaijan, Belarus,

Botswana, Brazil, Bulgaria, Cape Verde, Central African

Republic, Colombia, Côte d’Ivoire, Croatia, Czech Republic,

Djibouti, Dominican Republic, Ecuador, Equatorial Guinea,

Finland, Georgia, Ghana, Guinea-Bissau, Guyana, Honduras,

Hungary, Iceland, Iran, Iraq, Israel, Kazakhstan, Kyrgyzstan, Laos,

Moldova, Mozambique, Namibia, Niger, Peru, Pitcairn Islands,

Poland, Romania, Russia, Rwanda, São Tomé and Principe,

Senegal, Singapore, South Africa, Sudan, Syria, Tunisia, Turkey,

Ukraine, Uzbekistan, Venezuela,Yemen

Proxy voting only Mauritius, Nauru, Togo, Vanuatu

Mixed procedures Algeria, Australia, Belgium, Benin, Chad, Cook Islands,

Estonia, France, Gabon, Guinea, India, Indonesia, Japan,

Latvia, Lithuania, Mali, Micronesia, Netherlands, New

Zealand, Palau, Philippines, Portugal, Slovenia, Spain,

Sweden, Thailand, United Kingdom

3. Type of election Diaspora should participate in

Proposal 3: The Kenya Diaspora should participate in Presidential elections in 2013.

There are four principal types of elections where voting by Diaspora members can take place.

i. Presidential Elections.

ii. Legislative Elections.

iii. Sub-National Elections.

iv. Referendums.

Countries adopt one or a combination of the voting types. There is no one-size-fits-all model

Most of the countries allow Diaspora to participate in the Presidential elections. This is

supported by the fact that the Diaspora has easy access to national political information

necessary to make an informed decision. In addition, offering legislative and sub-national

elections require more complex logistical arrangements.




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We understand that the Kenya’s General elections will involve voting for the President, Members of

Parliament, County Governors and Senators. Which type should Kenya Diaspora be allowed to

participate in during 2013 elections? Considering the complexity, cost and time left to prepare for the

coming elections, we are of the view that Diaspora should only be allowed to participate in

Presidential elections in 2013.

The Table 2 presents the types adopted in the 115 countries analysed by Andy Sundberg6

ELECTIONS FOR WHICH EXTERNAL VOTING IS ALLOWED

Type of Election Number of

Countries

Name of the countries

Presidential Elections Only 14 Afghanistan, Brazil, Bolivia, Dominican

Republic, Mexico

Legislative Elections Only 31 Australia, Belgium, Czech Republic, Greece,

India, Iraq, United Kingdom

Presidential and Legislative Elections 20 Argentine, Cape Verde, Croatia, Ghana,

Indonesia, Israel

Presidential Elections and Referendums 7 France, Lithuania, Mali, Yemen

Presidential & Legislative Elections, and

Referendums

11 Austria, Colombia, Portugal, Rwanda

Presidential & Legislative and Sub-National

Elections and Referendums

6 Ireland, Russia and the United States

Legislative Elections and Referendums 7 Canada, Italy, Sweden

Other Combinations 19 Bosnia and Herzegovina, Denmark, New

Zealand

TOTAL 115

4. Implementation requirements

4.1 Where to vote – polling stations?

6 Andy Sunderberg, page 7




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Proposal 4: A number of polling stations should be opened in different cities in a country

depending on the concentration of the Diaspora. The stations should also be used for

voter registration.

In reference to our proposal 2 above to allow personal voting in 2013, we propose that

sufficient polling stations be opened in each country to allow majority of eligible voters

to vote at low cost and with limited obstacles. Ideally, the number of stations should be

based on the geographical concentration and dispersion of the Diaspora communities in

a country. The polling stations – which should also be registration centers - should be

easily assessable. The Government should take into account the electoral budget

implications in determining the number of polling station to open in each country taking

into account the need to offer many electorates an opportunity to vote. In addition, the

Kenyan Government should engage with Governments globally to address any legal

territorial sovereignty issues that may complicate the use of venues other the Kenya

Embassies as polling stations. The Embassies should play a critical role in determining

and engaging on the legal issues.

“DA Abroad Chief Executive Officer, Ludre Stevens cited the situation in Australia,

where of the approximately 15,000 South African voters who had applied for a

special vote, fewer than 2,000 of them were actually able to cast their vote, as this

had to be in person at the only single polling station in the country, in Canberra, a

city 4,000 kilometres away from Perth, where a high proportion of those eligible to

vote reside7”.

A number of countries require electors to vote at the Embassy or consulate e.g Australia,

Russia, Australia and South Africa. The Diaspora voters present themselves at the

Embassy to vote. The approach allows control, full supervision and reduces the costs as

the process takes place in one location. However, it limits access as voters who reside

away from the city where the Embassy is located would need to bear travelling costs.

7 Article “DA Abroad starts campaign for SA overseas voting” accessed on May 4, 2012




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While this is an option, to allow majority of Kenyans in Diaspora to vote, we are of the

view that voting stations should be opened in a number of centres in host countries.

Application in South Africa

We propose opening polling/registration stations in 5 centres: Johannesburg, Cape

Town, Durban, Port Elizabeth and Free State8. Our proposal is informed by the

concentration of Diaspora in the 5 locations and cost element. Opening more centres

would increase electoral budget.

4.2 Registration of voters

Proposal 5: All Diaspora members who meet criteria in proposal 1 above, should be

offered an opportunity to register as voters at polling stations (refer to 4.1).

Arrangement should be put in place well in advance to provide adequate time for eligible

voters to register and ensure that no qualifying Kenyan is discriminated. The closing date

of Diaspora voter registration should be aligned to the dates in home country. We

acknowledge that there will be a challenge of determining whether all eligible voters are

registered due to lack of comprehensive Diaspora numbers at embassies as evidenced by

extract below by Mwakilishi, dated February 19, 2012

“Even though the IEBC estimates there are as many as three million Kenyans

abroad, less than half of them are registered with embassies and consulates,

according to figures from the Ministry of Foreign Affairs.

8 To request Kenya High Commission to provide us with the data of concentration of Diaspora in the 5 centres




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With 600,000, the United States has the highest number followed by the United

Kingdom (300,000), Canada (60,000), United Arab Emirates (46,000), South Africa

(40,000) and South Sudan (20,000)9”.

4.3 Electoral officers

Proposal 6: The Independent Electoral and Boundaries Commission should nominate

electoral officers for each Diaspora country. The officers should be trained together

with the other electoral officers in Kenya.

The electoral officer in partnership with IEBC should appoint officers to be responsible

of registration and voting in each of the designated polling/registration station. Ideally

such officers should be members of Diaspora. In addition, IEBC and country electoral

officer should consider extending an invite to a number of Diaspora members to offer

their support on voluntary basis in facilitating the registration and voting process. Such

members should meet criteria to be determined by IEBC – age, professional qualification,

etc. All officers should be trained. Further, the Embassy/ Consulates should provide

administrative support to the appointed country electoral officer.

4.4 Electorate communication and education

Proposal 7: To enhance electoral process, IEBC should develop a Diaspora education

and communication campaign.

In this regard, IEBC should incorporate in its communication and education strategy,

approaches to empower the Diaspora electorate. The initiatives should be centrally

coordinated to ensure issuance of consistent messages. Input and involvement of the

Diaspora associations should be encouraged. Nominated country electoral officers – refer

to 4.3 above – should be involved in the education campaign.

In South Africa, KEDASA, stands ready to support with empowering the Diaspora.

9 Article by Mwakilishi, “Kenyan Aspirants Scramble for Diaspora Vote” dated February 19, 2012




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4.5 Should Diaspora voters pay?

The question remains as to whether the Diaspora voters should be required to financially

contribute towards the costs of the electoral process. It is a known fact that most the Diaspora

members are not required to pay tax to home country on income earned abroad. Therefore,

Diaspora does not directly contribute to the tax revenue that is normally used as source of funds

for electoral process. This fact has been used as an argument to support the requirement for

Diaspora to contribute financially towards elections costs. The right to vote – as granted by the

Constitution – should not be limited by a requirement to pay. Therefore, we are of the view that

Diaspora should not be required to pay; we encourage IEBC to seek legal opinion on the matter.





References

Andy Sundberg, “The History and Politics of Diaspora Voting in Home Country Elections.”

Carlos Navarro Fierro, Maria Gratschew and Isabel Morales, ‘External Voting: A Comparative Overview’, in

Voting From Abroad: The International IDEA Handbook, (2007)

Grace, Jeremy, DRAFT“Standards for external and Absentee voting.”Available:

Martin Russell, “Diaspora engagement through presentation.” University College Duplin. 2011

Mwangi S Kimenyi, “Should the Right of Africa’s Diaspora to Vote Come With the Responsibility to Pay

Taxes?” dated 25 January 2012. Article accessed on April 30, 2012

http://www.brookings.edu/opinions/2012/0125_africa_diaspora_taxes_kimenyi.aspx

Article “DA Abroad starts campaign for SA overseas voting” dated 23 February 2011, SA Times. Accessed on

May 4, 2012

http://www.southafricantimes.co.uk/content/2011/02/23/da-abroad-starts-campaign-sa-overseas-

voting

Article by Mwakilishi, “Kenyan Aspirants Scramble for Diaspora Vote” dated February 19, 2012. Accessed,

April 12, 2012

http://www.mwakilishi.com/content/articles/2012/02/19/kenyan-aspirants-scramble-for-diaspora-

vote.html

Article, The Electoral Knowledge Network, “The Challenges of Designing an External Voting Mechanism that

Includes Migrant Workers.” Accessed May 2, 2012 The Challenges of Designing an External Voting

Mechanism

Article, Gerald Balaza, “Kenya Diaspora Pro-democracy movement.” Dated April 4, 2012. Accessed, April

28, 2012 http://geraldbaraza.blogspot.com

Article, Ben Goldsmith, “Out-of-Country Voting in Post-Conflict Elections.” Not dated. Accessed May 2,

2012

http://aceproject.org/today/feature-articles/out-of-country-voting-in-post-conflict-elections

Independent Electoral Commission of South Africa website: www.elections.org.za

http://www.brookings.edu/opinions/2012/0125_africa_diaspora_taxes_kimenyi.aspx

http://www.southafricantimes.co.uk/content/2011/02/23/da-abroad-starts-campaign-sa-overseas-voting

http://www.southafricantimes.co.uk/content/2011/02/23/da-abroad-starts-campaign-sa-overseas-voting

http://www.mwakilishi.com/content/articles/2012/02/19/kenyan-aspirants-scramble-for-diaspora-vote.html

http://www.mwakilishi.com/content/articles/2012/02/19/kenyan-aspirants-scramble-for-diaspora-vote.html

http://aceproject.org/ace-en/topics/va/the-political-rights-of-migrant-workers-and/the-challenges-of-designing-an-external-voting

http://aceproject.org/ace-en/topics/va/the-political-rights-of-migrant-workers-and/the-challenges-of-designing-an-external-voting

http://geraldbaraza.blogspot.com/

http://aceproject.org/today/feature-articles/out-of-country-voting-in-post-conflict-elections

http://www.elections.org.za/

Diaspora Voting Framework Proposal - KEDASA

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