Is disability forever an inability? The right to secret and independent voting for the visually impaired in Kenya

Courtesy of Election Access

On July 30, 2022, while addressing a special-interest group forum in Mandera County, Prof. Abdi Guliye, a commissioner for the IEBC, stated that the commission would not be providing braille ballot papers for visually impaired voters. The commission would, however, be providing voter education material in braille. This meant that once again, just like in previous elections, blind voters would have to rely on voter assistance to exercise their right to vote based on universal suffrage. The only slight difference with this voting method was that in the 2022 general elections, voters would be receiving assistance only from presiding officers who had received appropriate training on maintaining "secrecy." Party agents would be allowed to stand behind the presiding officer and listen in as they guide the voter. In previous electoral years, blind voters were allowed to choose assistants who had to take oaths of secrecy prior to the voting exercise.

While the commission may have viewed this new and improved voter assistance option as a stride towards bolstering the enfranchisement of the blind, the perceived secrecy remains just a fallacy. A voter's confidence in a voting system lies, among other things, in the assurance of secrecy, privacy, and confidentiality while casting a vote. Strong integrity and anonymity are extremely inextricable from secret ballot elections. It should be difficult, if not impossible, to put a name to a vote cast. Ergo, when a presiding officer is assigned the role of succoring the blind to vote, and in the process, the voter is forced to reveal their preferred candidate to the officer, secrecy is compromised. Shifting the role from the voluntarily chosen assistants to the presiding officers may well have assuaged instances of voter manipulation, but it still does not guarantee 100% confidentiality, as enjoyed by other voters.

Globally, there has been a paradigm shift in the political cultures of different countries, with a number of them recognizing the imperative nature of independent voting for the visually impaired. The right to vote privately has received international recognition and has been enshrined in international conventions, declarations, and legal instruments. The 1948 Universal Declaration of Human Rights was the earliest groundbreaking instrument to recognize the right to take part in the political life of a democratic country. Article 21(3) provides that elections should be by universal and equal suffrage and should be held by secret ballot or equivalent free voting methods. Eighteen years later, the ICCPR was adopted, and Article 25 of it concurred with Article 21(3) of the UNDH. The most recent development has been the UNCRPD, of which Article 29 requires state parties to protect the right of PWDs to vote by secret ballot and accord them appropriate assistive technologies.

Kenya has ratified the aforementioned conventions, which form part of the country's laws by virtue of Article 2(6) of the 2010 Constitution. The same constitution established the right to vote secretly and privately. Article 38(3)(b) provides that every adult citizen has the right to vote by secret ballot in any election, subject to reasonable restrictions. Furthermore, Article 27 prohibits any form of discrimination by ensuring that everyone receives equal protection and benefit from the law. Accordingly, if a blind person is forced to dictate their choice to someone else, their privacy and confidentiality are vitiated. As such, they are not in any way able to make certain whether the vote cast by the third party on their behalf is indeed a true reflection of their choice. This elicits voter mistrust, reduces voter confidence in the electoral system, and ultimately may adversely affect voter turnout in subsequent electoral cycles. It is immaterial whether the visually impaired person is assisted by the presiding officer or a person of their choice; the critical element of a secret ballot remains a mistaken belief.

Granted, the befitting disposition would be for the blind and partially sighted to be accorded the same opportunity to vote privately and independently as other voters. This can only be realized if facilitative technologies such as braille and tactile ballot papers are adopted. Such adjustments would enable the visually impaired, both braille literate and illiterate, to exercise their right to vote secretly to its logical conclusion, as envisioned by Article 29 of the UNCRPD. The use of tactile ballot jackets would boost voter confidence and guarantee privacy. The International Disability Alliance, an organization committed to the implementation and compliance of the UNCRPD, concurs that allowing the visually impaired to vote secretly bolsters their autonomy and independence. Assisted voting is a plausible alternative as provided for by Article 29 of the UNCRPD and closely mirrored by Section 29 of the Kenyan Persons with Disability Act; however, the accommodation should not be used to eschew the secret ballot voting method. A country that believes in the full realization and protection of the rights of its citizens should align its values and goals in a similar fashion. The positive move by the IEBC towards ensuring the visually impaired vote by secret ballot is long overdue!

The IEBC has undeniably made great strides toward ensuring the blind and partially sighted, as evidenced by voter education material provided in Braille in the recently concluded elections. It has also promised to factor in braille ballot papers in the budget for subsequent elections. The commission should make good on its promise to guarantee autonomous and independent voting for the visually impaired in future elections, for only then will the disability of the blinds cease to be an inability to exercise their right to independent voting.

Mercy Kamau is a 2nd year Law student at the faculty. She is a proud member of the Moot Court Society where she doubles as the Assistant Logistics Officer. Mercy is also an active member of the Kenya Model United Nations, Parklands Chapter.