Sovereignty Argument in the Biometric Voter Equipment Debate is Unrealistic

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 8^th. 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.