The electoral commission has given in to 20 of the 30 conditions given by the opposition as the minimum that should be done before it takes part in the election, only 10 days away.
But the Independent Electoral and Boundaries Commission (IEBC) refuses to sack Chief Executive Ezra Chiloba and nine top managers as demanded by Nasa, setting the stage for a continued stand off.
Nasa leader Raila Odinga on Sunday said he will not take part in the election with the same team at the helm of the IEBC.
In a detailed response to Nasa’s 34 “irreducible minimum” conditions, the IEBC also declined to push out commissioners Abdi Guliye and Molu Boya.
On that, it said: “There were no officers found to have been complicit in processing results and displaying figures that were not results. Further, as observed in the Supreme Court of Kenya judgment, there was no evidence adduced to prove to the commission of any election offence by the officials.”
It, however, agreed with a demand to have a Nasa ICT team given access to the system used in results transmission, to have results announced at the constituency tallying centres and to have the scanned result forms sent.
Some of the demands, such as to have scanned images of the forms sent and the results announced at the constituency level, have been acceded to, with the commission also telling the parties it is their job to ensure there are agents in all polling stations to verify vote counting and recording.
The commission’s response to the Opposition coalition was published in advertisements in the press on Sunday.
It comes almost two weeks after the Nasa team walked out of a meeting with IEBC chairman Wafula Chebukati and other commissioners, saying they were dissatisfied with the response to their demands.
Mr Chebukati characterised Nasa’s discontent as coming out of the failure by the IEBC to give a point-by-point response in writing to their demands but after a further meeting the same day at Bomas of Kenya, Nasa lawyer James Orengo and chief executive Norman Magaya said none of the their demands had been met.
On Sunday, Mr Odinga told a rally in Mombasa that he would have been declared winner of the August elections had the IEBC agreed to open the servers for scrutiny.
He vowed that Nasa will not take part in the elections unless the reforms they want have been implemented. “We will not go back to polls with the same team at IEBC. We want a level playing field,” he said during a rally at Mama Ngina Grounds in Mombasa where he led the crowd in chanting: “No reforms, no elections.”
In the response, IEBC also explains its decision to stick with technology provider OT Morpho and printer Al Ghurair.
On Morpho, the IEBC said it had not received any evidence of the firm’s alleged complicity in mishandling the election and had decided to retain it for a variety of reasons.
“It will require at least six months to implement a new election system (procurement, supply, commission, implementation, testing, training and support). For this reason the commission had to retain the services of OT Morpho,” it said, adding that the Dubai printing firm had printed the result forms as per the IEBC’s specifications and because of time constraints and the existing contract, another company could not be picked.
The agency refused to allow the demand that it provides the physical location of its servers on the basis that doing so would compromise their security and that the demand that a third party manage their ICT infrastructure for the elections would undermine their security.
It agreed with most of the other demands on the ICT system, which Nasa had listed in detail but rejected others specifying the software it should use to secure its data and to share information on the security of its database with the parties.
On forms 34B, which Nasa wanted pre-printed with the candidates’ names and polling stations, IEBC concluded that it was impractical because there are 40,883 polling stations.
“The commission shall use the appropriately customised spreadsheet to generate Form 34B and 34C to minimise errors and increase efficiency in the results management process,” it said.
The commission refused a demand that it employs new returning officers, saying: “Due to limited time, the commission will not be able to recruit, train and deploy new ones but will use its permanent employees as returning officers for accountability purposes.”
The agency rejected the assertion by Nasa that in the last elections, there were 80 fake Forms 34B and said that it has enhanced the management of the forms.
“There shall be adequate statutory forms with specified security features to ensure that all pages of the result forms have security features. The Commission has standardised the appearance of Form 34B across all the constituencies,” IEBC said.
The commission also rejected a proposal that it allows monitors selected from a representative group to have a role in signing off election materials and result forms at polling stations and constituency tallying centres.