“I would take this opportunity to comment briefly on C.I 91. In view of all the happenings in respect of the eligibility criteria of potential voters on the register, one would have thought that any change in the law would have made provision for the form of identification used by a registered voter to be captured in the 1st defendant's database.

This would have made it easier in future for the court to make definitive pronouncements on the status of persons whose names appear in the voters register. It is sad to recall that C.I. 91 has been published without this important information. It is good to draw lessons from court decisions in order to inform future conduct of state actors.

Regulation 22 of C.I. 91 did not improve upon CI 72. If this court's decisions do not guide the future conduct of state actors, then problems of needless litigation will never be stopped and the country will be poorer for it. An offshoot of court decisions is to provoke and influence change or reform in the law to prevent or reduce future litigation and conflict.” ~ A. A. Benin, JSC

The first defendant in the quote above is the Electoral Commission (EC) and this is Justice Benin bemoaning the fact that the EC does not, proactively, use court decisions to improve upon its conduct.

We have the same situation with the New C.I. 94 currently before Parliament that is meant to replace C.I. 75 regulating the conduct of public elections. This one is specifically about the manual verification that is going to be permitted during this year’s election.

The EC, in a press release in April this year, indicated that it rejected the recommendations of Civil Society Organisations and the political parties to retain the ‘No verification, No vote’ provision of C.I. 75 that was used for the 2012 elections. The reason given was that the EC does not want the equipment to disenfranchise some voters.

In arriving at this decision, the EC has not provided to the public any statistics on the number of people who could not be verified and hence could not vote in 2012.

Anyway, to prevent this problem, the EC has amended the provisions to cater for those ‘rejected’ by the machines, in the new C.I, as follows: ‘Identification and verification of voters

32. (1) A polling assistant may, before delivering a ballot paper to a person who is to vote at the election, require that person to produce a voter identification card in order to establish that the person is the registered voter whose name and voter identification number and particulars appear in the Register.

(2) In the absence of a voter identification card, the polling assistant shall identify the name and particulars of the voter as recorded in the name reference list.

(3) The polling assistant shall scan the barcode of the voter in order to establish by facial recognition the identity of the voter.

(4) The voter shall go through a biometric verification process through the use of the biometric verification device.

(5) Where the biometric verification device fails to verify a registered voter and the red light is shown with a voice message “REJECTED,” the polling assistant shall:

(a) inform the agents of the political parties present at the polling station;

(b) complete a Verification Form, as set out in Form Seven of the Schedule in the presence of the party’s candidate or agent; and

(c) hand over the completed Verification Form to the Verification Officer.

(6) The Verification Officer shall draw a horizontal line across the voter’s barcode in the register to indicate that the voter has been manually verified.

(7) At the end of the voting and before counting of the ballots, the number of persons manually verified shall be entered in the second box in C6 on the Statement of the Poll and Declaration of Results Form as set out in Form Eight of the Schedule.’

A reading of these provisions immediately shows the potential to introduce fraud during the elections. The first thing to note is that all the decisions leading to allowing someone to vote after manual verification are to be taken by the Presiding Officer and his assistants.

The party polling agents are only to be informed but cannot do anything, if they disagree, to prevent the individual concerned from voting. Besides, the provisions are not set out clearly to address the stages of verification and the different scenarios that may come up on the day.

There are two stages of verification:

Stage one is to confirm that the voters ID presented is genuine and that the card bearer can, at least, be identified facially by comparing the photos on the card and the machine. This is done through scanning of the barcode on the voter’s ID.

This stage introduces the first opportunity for fraud - a voter may bring a fake ID card or may turn up with no card at all. The provisions, as provided above, give directions on what to do with those without ID cards, but nothing at all about those whose cards are not identified.

From the Manual Verification Form, it appears both categories of voters described here can proceed to the next stage, provided the Names list officer is ‘agreeable’.

After going through Stage one, with no effective gatekeeper provisions against fraud, the voter proceeds to Stage two. This is the stage where the voter is ‘biometrically’ verified by having their fingerprints scanned. If the verification is successful, the voter proceeds to obtain the ballot papers to cast their votes.

However, if verification is unsuccessful, the voter is then required to fill in a Manual Verification Form, subject to the Polling Assistant informing the party and candidate agents present.

The Manual Verification Form asks three questions with a ‘Yes’ or ‘No’ boxes to be ticked. The questions are:

1. Name and picture tally with voters’ Register?

2. Voter’s barcode in Register was successfully scanned?

3. None of the voter’s fingerprints were successfully scanned?

It should be noted that question 3 is redundant since the answer is already known, and that is the reason why the voter is filling the Manual Verification Form. The remaining questions are about the Stage one verification, where no effective gatekeeper provisions exist.

The glaring loophole is that, irrespective of the responses to the questions, the Presiding Officer is expected to sign that the voter qualifies to vote and has been manually verified.

It is really baffling the bases upon which a person who fails Stage one of the verification process can go on to vote. It is even more troubling if a person who fails both stages of verification ends up voting.

It could be that the EC is basing the efficacy of these provisions on the honesty of its employees (both permanent and temporary) and the accuracy of the Voters Register. But are there any risks that can be foreseen, which ought to have been eliminated?

At each polling station, the EC officials will have a hard copy of the Register for that polling station with barcodes; the party agents will have same. It will be important for the party agents to establish on the day that the EC’s and their registers are the same, in terms of number of voters.

There will also be a soft copy of the register on SD cards inserted into the machines. Here, though, the database is for the entire constituency of which the polling station forms a part. Thus it will be impossible for party agents to confirm the number of voters’ details loaded into the machine that is specific to that polling station.

A suggestion was made at IPAC for the data on the SD card to be restricted to polling stations. It is known whether or not this has been accepted by the EC. But if the EC refuses, the introduction of manual verification makes the voting process susceptible to fraud, especially if considered together with the credibility issues surrounding the national Register.

It would seem that, to protect the sanctity of the ballot, all voters should be required to produce a voter’s ID card, and all voters who fail the first stage of verification, using their voter’s ID cards, should not be allowed to proceed to Stage two.

Since the C.I. is currently laid in Parliament, it is incumbent on parliamentarians, as the peoples’ representatives, to plug this gaping hole. If the partisanship on display about the conduct of elections is anything to go by, though, I should not hold my breath for any action to be taken on this front.