Scok: Technology used by IEBC met all set standards

Tuesday, September 27th, 2022 01:13 | By
Supreme Court
Supreme Court of Kenya judges. Photo/Courtesy

Technology deployed by the Electoral and Boundaries Commission (IEBC) for the conduct of the 2022 General-Election met the required standards, the Supreme Court said yesterday in its detailed judgment on the presidential election petition.

In a unanimous finding, the seven-judge Bench headed by Chief Justice Martha Koome ruled that “we are not persuaded by the allegation that the technology deployed had failed.”

The judges held that the electoral system deployed during the just concluded presidential election met both constitutional and legislative threshold adding that they were not persuaded by the evidence adduced by Azimio La Umoja presidential candidate Raila Odinga in his petition challenging the election of William Ruto as independent Kenya’s 5th President.

Vote manually

Raila had claimed that the technology deployed by the electoral commission had massive shortcomings which ended up denying him his victory. He also claimed that the final vote tally was manipulated by the electoral commission to favour Ruto who was eventually declared the winner.

Raila, alongside seven other petitioners, had raised issues over the Kenya Integrated Management System (KIEMS) kits that IEBC deployed in the 46, 229 polling stations.

In their finding, however, the judges noted that the kits failed in 235 polling stations, 86,899 affected voters were granted the right to vote manually, and the requisite forms 32A were filed. This happened successfully in Kibwezi constituency and part of Kakamega county, the judges said.

“We are not persuaded by the allegation that the technology deployed by IEBC failed the standard of Article 86(a) of the Constitution on integrity, verifiability, security and transparency,” the judges stated while dismissing the suit.

The judges found that IEBC complied with Section 6A of the Elections Act by opening the Register of Voters for verification of biometric data by members of the public for a period of 30 days as from May 2 to June 2, 2022.

Thereafter, the Register of Voters was revised to address issues that arose from the verification exercise.

IEBC through former Attorney General Githu Muigai had denied claims by the main petitioner, Raila, that its system had been infiltrated to allow for original forms 34A to be deleted and replaced with doctored forms which were uploaded to the portal. “The services of Smartmatic International Holding BV was, through a competitive process, procured to provide the necessary technological infrastructure since IEBC did not have the capacity to do so. Further, the petitioners did not adduce credible evidence to demonstrate that the system had been accessed by unauthorized persons for illegitimate purposes,” the judges stated.

The Apex court further noted that IEBC successfully deployed a Biometric Voter Register (BVR) system which captures unique features of a voter’s facial image, fingerprints and civil data, to register and update voter details across the country and in the diaspora. The judges dismissed the allegations by the petitioners saying that there has been no specific complaint by any voter, agent or member of the public over their inability to use or frustrations in the use of the technology.

Further, the judges found that contrary to the petitioner’s assertion, the commission did not abdicate its role in the procurement of the technology used in the conduct of the presidential election.

“IEBC complied with Section 44 of the Elections Act and with the procurement procedures under Regulation 4 (1) of the Elections (Technology) Regulations, 2017. We are further satisfied, from what we have said earlier, that the procurement of the system was within the law, as confirmed by the concurrent decisions of the Public Procurement Administrative Review Board, the High Court and the Court of Appeal,” they added.

But during the hearing of the case, IEBC lawyer Mahat Somane accused Raila of forging the forms which he presented as evidence. “In Ndaina polling station, they claimed that their agent provided them with a form which was different from what is in the portal. If you look at the form attached to the portal and even the one the petitioner submitted, there was no agent at the polling station,” he stated

Final outcome

On their part, Raila’s legal team questioned the role of the Venezuelans in deciding the final outcome of the election.

However, the commission defended their log-ins, stating that they were employees of Smartmatic and were tasked with maintaining the system- an access that was only granted before the election date. The judges ruled that: “On regards to the form 34A which was sensationally presented by Julie Soweto to show that Camargo accessed the RTS and interfered with the result contained therein, this also turned out to me no more than hot air and we were taken on a wild goose chase which yielded nothing of covertive value.”

The judgment read that the court had inconsequentially thrown out the evidence tabled by John Githongo, stating that it may have contained forgeries and did not meet the evidential threshold.

“Those averments contain no more than hearsay, no admissible evidence was presented to prove the allegations that forms 34 A were fraudulently altered by a group in Karen,” the judges added

In her counterclaim, Soweto, representing Raila, had told the court that one Venezuela national Jose Camargo had access to the system during the election, displaying a form 34A whose metadata bore the foreign national’s name.

Soweto argued that the form from Gacharagu Primary School polling station in Muguru ward, Murang’a county, was evidence enough that he might have infiltrated the system in a bid to alter the results by switching the contents of the court.

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