Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence 3.0 Pre-Election Day Scrutiny 3.1 Inspection of the Voters Register The right to vote guaranteed by Article 38(3) of the Constitution is exercisable by all adult Kenyans who are registered as voters.30 That renders the right to be registered as a voter and the integrity of the voters roll sacrosanct. Every citizen’s right to be registered as a voter31 and to demand scrutiny of the voters’ register to ensure that his or her name is in it cannot therefore be overemphasized.32 As is the case in many other jurisdictions such as Australia,33 Nigeria,34 Pakistan,35 South Africa,36 and Tanzania,37 upon completion of the registration of voters and compilation of the voters register, Section 6 of the Kenyan Elections Act grants the public the right to inspect the register at any time “for purposes of rectifying the particulars therein”38 and confirming that one’s name is on the register.39 For the public to exercise their right to vote, a proper and authentic register should be compiled and made public. After finding out that the voters register used in the 2007 general election was bloated with over 1 million deceased persons on it,40 the Independent Review Commission (IREC), which was appointed by the Government of Kenya to inquire into the botched 2007 elections and the cause of the 2008 post-election violence and make remedial recommendations, singled out voter registration as “open to serious 30 Elections Act, s 3. 31 In Kituo Cha Sheria v. IEBC & Another, [2013] eKLR the High Court held that even prisoners are entitled to register and vote. 32 This is probably why, save for short periods prior to and after elections, Section 5 of the Elections Act provides for continuous the registration of voters. 33 The Australian Commonwealth Electoral Act of 1918, s 90A. 34 The Nigerian Electoral Act No. 6 of 2010, s 19. 35 The Pakistan Electoral Rolls Act, No. XXI of 1974, s 8. 36 The South African Electoral Act No. 73 of 1998, s 16. 37 The Tanzanian National Elections Act, 2010, Cap 343, s 22. 38 Elections Act, 2011, s 6. In the election year sixty days prior to the general election, the inspection of the register is limited to a period of fourteen days or such period as the Independent Electoral and Boundaries Commission, (the IEBC) shall by notice in the Kenya Gazette specify. See Section 24(2) and Regulation 27(2) of The Elections (Registration of Voters) Regulations, 2012. Although it is not expressly stated, the particulars for rectification may include disputes on the names of persons in the register who may not be eligible to vote and removal from the register of deceased persons. See Section 8(2)(b). 39 If one finds one’s name missing from the register, under Section 12 one has a right to lodge a claim to the registration officer for the area with a right of appeal, first to the Principal Magistrates Court and then to the High Court, if one’s plea is denied by the registration officer. 40 Independent Review Commission Report (IREC) The 2007 General Elections in Kenya ch III, (2008), 32. 248