, NAIROBI, Kenya, Oct 4 – A Bungoma voter has moved to court seeking to have Sections 39 and 44 of the Elections Act providing for electronic transmission of election results, declared unconstitutional.
In a petition filed at a Nairobi High Court on Wednesday, Juma Mukhwana argues that the sections contravene provisions of Article 86 (a) and (d) of the Constitution which state that the process has to be “simple, accurate, verifiable, secure, accountable and transparent”.
The petitioner also cites provisions of Article 81 (e) (iv) and (v) of the Constitution which requires that an election is administered in an “impartial, neutral, efficient, accurate and accountable manner”.
According to Mukhwana, the Kenya Integrated Election Management System (KIEMS) – through which the electoral commission identifies voters and transmits election results – fails to meet the constitutional threshold of the conduct of elections.
Mukhwana also argues that the contested sections violate Article 38 (2) of the Constitution which provides that citizens are accorded an opportunity to regular elections based on universal suffrage and free expression of their will.
“I verily believe that the ordinary voter represented by the imagery of Wanjiku did not and could not independently examine and verify the accuracy of the electronically transmitted results. Wanjiku has no knowledge of electronically operating systems, logs, servers, firewalls, clouds, read-only access etc.” the petitioner submits in a 17-point affidavit drawn by Kilukumi and Co. Advocates.
Mukhwana who lists the Attorney General as the respondent and the Independent Electoral and Boundaries Commission (IEBC) as an interested party enumerates 12 reasons for seeking the declaration of electronic transmission of results unconstitutional.
For instance he states that the KIEMS system cannot be comprehended by an ordinary voter since it harbours a lot of technicalities.
“All essential steps in the elections are subject to public verifiability and examinability including the ascertainment of the election result,” he contends.
“The particular danger in computer-controlled KIEMS lies in the fact that elections could be much more effectively influenced via manipulation of the software by the device manufacturer, consultants or internal and external persons including hackers,” he further holds.
It is Mukhwana’s position that the decision of the voter should not be subjected to uncertainties that come with technology failures and tampering which risk distorting the sovereign will of a citizen to elect a leader in any given election.
He also states that inbuilt security features meant to guard against manipulation of an election outcome often make the electronic transmission of results more complex beyond the comprehension of a voter; a vital stakeholder in an election process.
Section 44 of the Election Act has since the Supreme Court nullification of the August 8 presidential election on September 1 been the center of attraction for politicians across the political divide with critics blaming its provisions for being too ambiguous.
The Jubilee Party, for instance, has sponsored amendments to the law seeking to provide for the use of election results submitted manually by returning officers from all the 290 constituencies as the final point of reference in case results transmitted electronically are disputed.
The National Super Alliance has, however, read mischief into the amendments accusing Jubilee of attempting to change the rules of engagement midstream to suit their interests.