The electoral commission is staring at a legal crisis after the High Court quashed directives that require presidential candidates to submit copies of identification documents of their supporters.
Justice Anthony Mrima, in a judgment that could make the presidential election a crowded race, also said the regulations that required independent candidates to submit copies of identification documents of their supporters are unconstitutional.
He said the regulations enacted by the Independent Electoral and Boundaries Commission (IEBC) in 2012 and amended in 2017 contravened the Constitution and the Data Protection Act.
Since the IEBC has already started printing ballot papers in Athens, Greece, it is unclear whether it will be restarted with the inclusion of aspirants who had been disqualified on the basis of their failure to submit identification documents of their supporters.
Independent aspirants for the National Assembly, Senate, governor and county assembly seats were also subjected to the regulations. Among the presidential aspirants whose applications were rejected for reasons related to the voters’ data is gospel singer Reuben Kigame, Dr Ekuru Aukot (Thirdway Party), Mr Jimi Wanjigi (Safina) and Mr Mwangi wa Iria (Usawa party).
They were disqualified for various reasons, including allegations of failing to meet the signatures threshold. Aggrieved by the rejection, the aspirants moved to court, arguing that the regulations were discriminatory because political parties are only required to submit a membership list that has been certified by the Registrar of Political Parties.
They also argued that IEBC had placed a heavier burden on independent candidates by asking them to get signatures of their supporters as well as copies of their identification documents.
“These regulations are discriminatory against independent candidates who are required to submit to returning officers duly filled form of their supporters which must be accompanied by a copy of the identification document of their supporter,” they said in the court papers.
Justice Mrima found that at the time the commission directed persons seeking to vie in various electoral positions as independent candidates to supply copies of national identity cards of their supporters, the commission did not indicate measures for protection of the data.
“A cursory reading of the Data Protection Act unfolds the manner in which the law treats personal information in such seriousness. The law places burden on data controllers and data processors who must be registered with the data commissioner for specific duty being to protect data. It provides for personal data protection,” said the judge.
He said the requirement of independent candidates to provide copies of identity documents was inconsistent with the provisions of the Act.
The quashed regulations are listed as Regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017).
