Activist Okiya Omtatah has moved to court to compel the electoral agency to acquire new kits for the October 26 repeat presidential poll.
In his suit against the Independent Electoral and Boundaries Commission (IEBC), Mr Omtatah claims the commission intends to reconfigure the kits used in the bungled August 8 polls yet the law requires election materials to be preserved for three years.
“Contrary to the clear provisions of the law, IEBC instead of procuring new KIEMs kits for the repeat presidential elections, plans to re-configure the ones used in the nullified elections which will effectively destroy data stored in the gadgets,” says Mr Omtatah.
IEBC, he argues, has an obligation to protect the Kenya Integrated Elections Management Systems (KIEMs) kits alongside all other election materials.
They include ballot boxes, papers, counterfoils, envelopes and other documents used in the poll.
He claims re-configuring of kits used in the last polls so as to be used in the repeat one would ultimately violate the Constitution since that will mean that the IEBC would be engaging in administrative action that is not expeditious, efficient, lawful and procedurally fair.
“Election materials are preserved because members of the public may want to look at the materials for purposes which include the credibility in the conduct of the elections without necessary seeking a determination from the courts,” says Mr Omtatah.
According to Mr Omtatah, the decision to reconfigure the KIEMs kits is untenable and must be stopped.
He alleges that the IEBC would be outrightly violating the law should they decide to reconfigure the KIEMS kits.
Elections law provide that all documents shall be kept by the returning officer for a period of three years after the results of the elections.
It is only a court order or a decision of the IEBC that can have the material be removed from safe custody.
The Election laws also stipulate that any person may apply to the High Court for authority to inspect documents, except ballot papers and their counterfoils, after notifying all other candidates in the election.
It further states that a returning officer shall unseal and reseal the documents concerned in the presence of candidates or agents after the inspection is completed.
Mr Omtatah wants the court to issue an order temporarily blocking the IEBC from publicly declaring that it would reconfigure the KIEMS kits for reuse.
He also wants the case to be certified as urgent.
Mini-budget will result in an increase of recurrent expenditure by Sh52.9 billion.