Legal and governance experts said the Supreme Court ruling was made based on the provision of the Constitution that guarantees freedom to access to information.
The experts agreed that the rulings made so far indicate that the Supreme Court judges are keen on hearing all evidence adduced as opposed to what happened in 2013, when some was knocked out on technicalities.
The experts added that by granting the National Super Alliance (NASA) access to the Independent Electoral and Boundaries Commission (IEBC) servers, the court emphasised the importance of freedom of access to information as enshrined in the Constitution.
“The access has been granted primarily relying on Article 35 of the Constitution, which grants freedom to access information,” said Bobby Mkangi, a constitutional lawyer.
Mr Mkangi noted that NASA was denied unfettered access to IEBC servers because of time limitations and the practicality of the whole process of accessing the information.
“NASA will present an IT expert who, together with the IEBC expert, will scrutinise the information on the servers without changing anything,” Mkangi said.
“This will ensure NASA only accesses available documents without changing them so that the IEBC systems remain secure and are not compromised,” he added.
Lawyer Charles Kanjama supported Mkangi’s sentiments, saying the law provides that electoral systems should be verifiable, accurate, and transparent.
“NASA has been allowed limited access based on the above principles so that they can interrogate and review the system. But they won’t use any software to change any information therein,” Mr Kanjama said.
He noted that the access is critical because NASA’s case is partly built on the fear of illegal and improper access used to manipulate IEBC systems.
What Raila can obtain from IEBC servers
“NASA is worried that the killing of IEBC IT manager Chris Msando was related to the alleged hacking of the electoral body systems. IEBC is now to give them information on its user management system to determine who can or can’t access the system,” Kanjama said.
Ndung’u Wainaina, a governance activist who is also the executive director of the International Centre for Policy and Conflict, said granting NASA access to IEBC servers sets a good precedence in terms of access to information.
“The ruling marks a celebration for Kenyans and the media that from today, no public body will deny the media or any Kenyan the information that they seek,” Mr Wainaina said.
He said the Supreme Court judges are handling this petition differently compared with the 2013 one led by retired Chief Justice Willy Mutunga.
“This is a clear departure from the past. The judges are moving away from technicalities to substance, indicating that they will hear each case based on its merits,” Wainaina said.
The experts also agreed that the need to listen to the core issues of the petition informed the Supreme Court judges’ decision not to allow all those who had applied to be enjoined in the matter as interested parties or friends of the court.
They noted that the applications of Dr Ekuru Aukot and Prof Michael Wainaina were allowed because they have clear direct interest.
Kanjama said Attorney General Prof Githu Muigai and Law Society of Kenya (LSK) applications were granted because they are statutory bodies that represent Government and public interest.
Constitutional lawyer Waikwa Wanyoike also agreed that the rulings so far are not surprising.
“The rulings were expected… because of public interest,” said Mr Wanyoike.