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KENYAN Diaspora IN SOUTH AFRICA
Reg. No. 098-986-npo
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KENYAN Diaspora IN SOUTH AFRICA
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
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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.
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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