Korir Sing’Oei, is an international human rights attorney
and Litigation Director, Katiba Institute
This article offers an opposite view to that advanced in
Jaindi Kisero’s article in the Daily Nation of Wednesday, August 8th.
Kisero avers that major sovereignty and national security issues are implicated
by the decision to allow a foreign firm identified on government-government
contracting to provide biometric kits to facilitate fair elections merely
because such a firm will have biometric data of over 18 million Kenyan
citizens. I hold divergent views to Kisero based on several grounds.
First, from the experience of 2007-8 elections, violence in
Kenya has troubling trans-national implications. Therefore, given the deep
economic and social ties that inform our current interactions, credible and
peaceful elections in Kenya are not only a legitimate expectation of Kenyans
but of the entire region. Electronic
voter registration and votes tabulation has been advanced as one means for
minimizing the manipulability of electoral outcomes. Tested in some
constituencies in the context of the referendum in 2010, automation of voter
registration and tabulation expedited the entire voting and tabulation process
contributing to the minimization of disputes arising from perceived malfeasance
of electoral officials. The offer by the international community to support the
acquisition of a tool for a more efficient and credible election-albeit outside
Kenya’s procurement regime- cannot be viewed as threatening national security
or sovereignty more than a botched election would do.
Second, the author fails to appreciate that the Westphalian
model of state sovereignty has dramatically changed. Whereas this model made
states the central interlocutor between global governance institutions and
citizens, the entry of powerful non-state actors in contesting for this space
has reduced state hegemony. Unsurprisingly, Kisero’s views resonate with
proponents of ‘thick sovereignty’ who strenuously argued against the
involvement of external mediators to quell the violence in 2007-8 on national
sovereignty grounds. To this coterie of conservatives, Kenya would rather have
been allowed to burn in a cauldron of self annihilation, if only to ingratiate
its deep seated feelings of independence. In contrast, sovereignty within
current global politics recognizes that the state is becoming embedded in a
broader and deepening transnational arena concerned with the production of
public goods. According to John Ruggie, a Harvard professor of international
relations and the UN Special Rapporteur on Human Rights and Business, this shared
sovereignty represents the new realism where sovereignty inheres not just in
states but in people, namely citizens of these states. Appreciating this
reality, our new constitution articulates peoples’ sovereignty in fairly
unambiguous terms in article 1, thus “All sovereign power belongs to the people
of Kenya.”
Third, international and regional regulation of electoral
and democratic processes caution against looking at elections from an insular
perspective. The AU, itself a less than liberal institution, taking a fairly
pragmatic approach has legislated on the issue of elections through the
adoption of the AU Charter on Democracy Elections and Good Governance. This
treaty, which Kenya has signed, commits states parties to promote the
“utilisation of information and communication technologies” in securing
credible election outcomes. The import of ratifying such a treaty is to make
Kenya amenable to regional and international supervision in relation to the
conduct of its affairs relative to elections, thereby technically constraining
the notion of sovereignty.
It therefore follows that credible and peaceful elections in
Kenya are no longer an independent but an interdependent choice where the ‘public’
to be engaged is not merely the Kenyan public, even if Kenyan citizenry are
implicitly the primary actor in this drama. To be apprehensive about this
‘external public’ is to shirk our responsibility to embrace a broader notion of
peoples’ sovereignty.
