The electoral commission has scored a significant victory following the High Court’s rejection of a petition that questioned the electronic election system.
The decision on the Kenya Integrated Electronic Management System (KIEMS) is a relief to the Independent Electoral and Boundaries Commission (IEBC) ahead of today’s ruling on the presidential ballot papers tender case.
IEBC went to the Court of Appeal to challenge the High Court’s nullification of the tender awarded to Dubai-based firm, Al Ghurair.
On Wednesday, the High Court ruled that IEBC followed the law and observed the standards set for importation of goods when it procured the election system, which include the Biometric Voter Registration (BVR), identification, and the result transmission kits.
The ruling is a relief for the electoral body as it would have had to grapple with sourcing for different devices with just 18 days to election day.
The case had been filed by human rights activists Maina Kiai, Tirop Kitur, and Khelef Khalifa.
They had claimed that IEBC had overlooked the law on standards when they were procuring the devices.
They also claimed that there was no public participation, nor did political parties engage in the process.
But Justice Mativo, after looking at the replying affidavit by IEBC CEO Ezra Chiloba, ruled that the evidence before him was enough to throw out the case.
The judge found that the three did not rebut the evidence from the electoral commission.
“The position would have been different had the petitioners provided sufficient material to counter the claims (by Chiloba). In the absence of such evidence, I find no reason to doubt Mr Chiloba’s explanation rendered on oath,” said Justice Mativo.
The case was determined through an exchange of affidavits and submissions. This means that lawyers did not appeared in court for any hearing.
In the case filed by lawyer Willis Otieno against the Kenya Bureau of Standards (Kebs) and IEBC, it was claimed that the election system had not been subjected to pre-export verification standards and might contain ghost voters in an effort to enable rigging.
The activists had also argued that Kebs had failed in its duty by not verifying whether the devices are up to standard and that this failure to follow the proper process taints the whole procurement process.
They was also claimed that there was a possibility of rigging the elections as the devices had not been confirmed to be tamper-proof.
“Misapplication of the law in the acquisition of the devices could result in violation of the right to a free and fair election,” the petitioners claimed.
IEBC argued that the devices were procured after a thorough test to ascertain that they would deliver on August 8.
System was tested
According to Mr Chiloba, the system was to be tested four months before the election date. This was done and satisfactory results obtained.
On public participation, IEBC said it called different experts in ICT and also engaged political party leaders.
Justice Mativo dismissed the entire case and ordered that the three pay IEBC and Kebs the costs of the case.
The Court of Appeal will rule on the presidential ballots printing tender on Thursday.