The Right to Vote Dissected: Discussing the Nexus between Casting the ballot and the Four Corners of Human Rights in Kenya Today

Access to Justice / ArticlesMay 30, 20170 CommentsKituo Cha Sheria


“Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of the voting process.”- Hilary Clinton   

Public participation in political process is viewed by many scholars and democrats as a virtue in its own right. While many aspects of this are still amorphous, it is safe to say that the whole process is usually initiated by casting the ballot which is fundamental dimension to democracy. The exercise of citizens coming together to choose a leader through a legitimate process has over the years crystallized into a divine right- right to vote- even in States where the idea is not constitutionalized.

In Kenya, the promulgation of the Constitution of Kenya 2010 reinvigorated the resolve of the people of Kenya to establish a human rights–based society, starting with robust regime of political rights. Article 38 of the Constitution of Kenya 2010 inter alia gives people of Kenya the right to vote in an election or a referendum. Article 1 of the supreme law also gives sovereign power to the people of Kenya, often exercised through casting the ballot. Article 2(5) and 2(6) of the Constitution of Kenya 2010 also opens the door to international law which gives the right to vote to citizens of a sovereign State. This paper is dedicated to the right to vote and how it is connected to civic, social cultural and economic rights in Kenya today.

What does the right to vote mean?

It is perhaps true that the action of picking a piece of paper and  choosing a name from the list may not be a complex affair, however, it is equally true  that the consequential analysis of this exercise makes it an important process that  has taken many scholars time to  reflect and come up with the meaning of this  right. There  are two schools of  thought with regards to this, the first one, looks at the right to vote as an individual right which brings in the ideals of equality  to solve electoral disputes or “election wars” .

Proponents of this focus on the technical aspect of voting, they insist that it is more about individual’s ability to control election disputes and less on equality and ripple effect of the choice. In other words, for them voting is limited to the issues on the table. The second group however, thinks of the right to vote in a broader sense, as a foundational right that opens the door to the other ideals of democracy. Borrowing from the words of the late Prof. Okoth-Ogendo [on Constitutionalism] it is all about values and ideals.

The Kenyan political scene seems blind to the second school of thought, however with  the less than 70 days remaining to the general elections and the campaign period officially commencing, it is perhaps time to look at these ideas-some of which may not find a place on the “election wars” table.

Firstly, it is quite evident that the idea of civic and political rights has gradually grown into the people’s hearts in Kenya.

Today, unlike in the past, there is freedom of speech and expression, people are free to critique and ask more of their government. There is freedom to form and participate in political party and the idea of affirmative action to deal with the marginalized and special interest groups. This growth however, does not mean there are no challenges.

The loudly – silent question of a free and fair electoral process still lingers in the shadows. As much as the Constitution of Kenya 2010 provides for free, fair, accurate and verifiable elections, even the courts have not been able to quantify these standards leaving the country in abeyance with regards to sanctity of the vote. In addition to this, the value of our political parties seems to  have dropped a great deal, evidenced by the large number of independent candidates registered for the upcoming general elections, it is apparent that institutionalization of political parties is still a white elephant. Everybody agrees that provision for independent candidature opens up the democratic space, however when there are this many, it can only mean that there is very little faith in the systems within our political parties. The only way to know for sure will be to wait for people to vote and see how many independent candidates get elected. But generally these are signs that Kenyans need to think about their political organization.

Secondly, there are social cultural and economic rights. The judicial attitude has always leaned towards progressive realization of these rights and for sure the first five years of governance through the Constitution of Kenya 2010 has provided progressive realization in some areas. For instance, healthcare, education, growth of infrastructure, telecommunications and IT; however, it is quite shameful that Kenyans have to die because of drought in the 21st century. They have to pay taxes, work very hard and still fundraise for their fellow citizens who cannot get food in places like Baringo as the County and National government remain complacent.

It is funny that as Kenya builds standard gauge railways and roads, the prices of basic goods  have risen to an all-time high, the levels of corruption are simply unprecedented and our public debt need to be addressed. It is highly probable that most of these issues will be the subject of the coming elections but whether the electorate will use their votes to enter into contracts that deal with these issues is all about waiting to see.

In conclusion, the 2017 general election provides the people of Kenya with an opportunity to make choices, decide leadership that will bring their aspiration to fruition, build their Country and fortify the bill of rights all at the same time.

It is yet another chance to exercise the right to vote!

Wish all Kenyans a peaceful general election 2017.


Ouma Kizito Ajuong’

LLB (Hons) KUSOL, DIP KSL, Advocate of the High Court of Kenya.

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