The country cannot run its election on a purely electronic system, the High Court ruled Friday.
In a 62-page finding, which marked yet another win for the Independent Electoral and Boundaries Commission (IEBC) and a major blow to the National Super Alliance (NASA), a three-judge bench found that an all-electronic system would be a peril to the country in the event it fails or is hacked.
Justices Hedwig Ong’udi, Alfred Mabeya and George Kimondo dismissed NASA’s case, saying there is no way Kenya’s “fragile election” can go without a fallback system which is not electronic.
“Finally this court has to consider the impact or the consequences if exclusive electronic system fails. It would throw the entire election into jeopardy and imperil our democracy,” the judges ruled.
“We therefore find that it would not be feasible to declare that the elections to be held on August 8, 2017 be exclusively electronic. It is clear that when the electronic system fails there should be a fallback system to avoid the entire system falling into shambles.”
They also found that the section of election law cited by NASA to buttress its claim on a purely electronic system does not provide for that. The High Court observed that if the legislators wanted the kind of system NASA was advocating, they would have expressly said so in the law.
NASA and Jubilee Party MPs had initially disagreed in Parliament over whether the complimentary system should be electronic or manual. Whereas NASA wanted an electronic system, Jubilee favoured a manual one.
In court, the division persisted, with NASA’s lawyer Paul Mwangi asking the judges to order that if the backup system is not in place, then the August polls should be pushed to a later date.
Mr Mwangi submitted that the IEBC has powers under section 55(b) of the Elections Act to postpone the election until the system is in place.
“In the event you agree with us, IEBC has the powers to postpone the election for hours or even a day,” the lawyer said.
Section 55(b) of the amended Act reads, “The commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county, or ward for such period as it may consider necessary where there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date.”
The section also states that IEBC can shift the date when it is impossible to conduct the elections as a result of a natural disaster or other emergencies or if there has been occurrence of an electoral malpractice of such nature and gravity as to make it impossible for an election to proceed.
The Jubilee Party, through lawyers Ahmednasir Abdullahi and Tom Macharia, on the other hand, argued that a fusion of a purely electronic system in the election process would be intimidating to those who have no technological know-how.
The judges heard that in the event an old or a disabled person’s name is not in the system, the only way to ensure they vote is by going back to the manual system.
Jubilee argued that having an electronic system without a manual backup was a way of voter suppression.
The three judges affirmed that election date cannot be changed, just like their Court of Appeal colleagues did on Thursday.
Court of Appeal decreed: “For avoidance of doubt, the constitutional date for this year’s General Election is August 8, 2017.”
The High Court judges disagreed with NASA, saying the August 8 date is cast in stone.
“The petitioner contended that in the absence of a credible complementary mechanism, the General Election should be postponed as provided in Section 55(b) of the Election Act. We disagree,” the judges ruled.