Electronic or hybrid election? Opinion split between senator, IEBC and AG

Should Kenyans walk to the polling stations, get electronically identified, vote for a candidate of their choice, get an electronic ticket, and have their vote digitally counted and transmitted? Or should we retain a hybrid system of voting where you cast your ballot manually, it is counted manually, and the result is sent electronically? These are the major questions that are splitting Busia Senator Okiya Omtatah and the Independent Electoral and Boundaries Commission (IEBC). On one hand, Omtatah, in his case, filed before High Court judges Jairus Ngaah and Hedwig Ongundi, argues that the election should be electronic or a digital system to achieve a tamper-proof process. On the other hand, the commission says the current system meets the requirements contemplated by the 2010 Constitution. According to the commission's lawyer Moni Mukele, it has the Kenya Integrated Election Management System (KIEMS), which encompasses biometric voter registration, electronic voter identification and electronic results transmission. At the same time, the commission argues that the election cannot be fully electronic, as Parliament requires it to provide a complementary mechanism for identifying voters and transmitting results to complement KIEMS. According to the commission, the printed version of the electronic voter registers is used to identify persons who cannot be found or identified by the KIEMS kit. "The petitioner is under the misapprehension that the standards for a voting system contemplated under Article 86(a) of the Constitution can only be achieved through a fully digitised electoral process and that a manual or hybrid process falls short of the standards required thereunder," argues Mukele in submissions exclusively seen by The Standard on Saturday. In this case, Omtatah argues that in all the elections conducted under the 2010 Constitution, a significant number of votes have been rejected. According to him, the language of the Constitution is that all votes cast ought to be counted to determine a winner. He argues that there is no room for casting spoiled ballots. He is of the view that the Edung Ethekon-led commission ought to come up with a voting system where a ballot can't be spoiled. According to him, this cannot happen if Kenya is still relying on manual ballot marking. "Because of relying on the manual paper ballots, the IEBC has failed to come up with a system that rules out the possibility of anybody deliberately or inadvertently casting a spoilt ballot into the ballot box... the framers of the Constitution were not thinking in terms of traditional paper ballots, they never anticipated a situation where spoilt or rejected votes would be an issue," he argues. Omtatah asserts that given the times and the tools currently available, invalid ballots can only be eliminated through electronic voting, where the voter uses an electronic device to make and record their ballot choice, either recorded on the machine itself, or the machine produces a token on which the choices are recorded. Since 2013, and currently, vote counting is carried out manually in the voting stations by presiding officers. Once the ballot boxes have been opened, the ballots are sorted by candidates and their party symbols (where applicable) and piled in that order. Then the presiding officer collects the pile for each candidate and shows each ballot paper to all political parties' (or independent candidates') agents and observers, so that they can all agree on the validity of the vote and count them. The senator says the manual counting system is slow, open to human error and requires money to hire agents to be present to 'guard the vote'. He submits that manually counting the ballots is an expensive, outdated, and time-consuming process. On the other hand, he notes that electronic voting and counting technologies can be combined, as seen in the direct recording electronic (DRE) voting machine. "It not only enables the voter to make his or her ballot choices, but also records them directly on the machine and produces results on the machine at the end of the voting process," says the senator. He cites countries such as India and Brazil, which have allegedly adopted a fully electronic voting system. According to him, even if IEBC adopts such systems, the servers' opening remains a thorny issue. Omtatah argues that even where the system is hacked or has been attacked by malware, a simple audit by an expert will identify the error. "Although hacking is always a risk, no one has ever managed to alter the machines' source code or election results. Any risks are further minimised because the machines aren't connected to the Internet and information is sent only through internal systems, segments of which shut down if alterations are detected," he argues. Omtatah wants the court to quash Section 44(2) of the Elections Act, 2011, regarding the use of technology, for failing to demand the immediate use of requisite technology to ensure that the IEBC conducts free and fair elections that are tamper-proof. He asserts that only digital technology can comprehensively meet the requirements of a simple, accurate, verifiable, secure, accountable, and transparent poll. Outside court, Orange Democratic Movement (ODM) leader Raila Odinga is among those who have proposed an overhaul and harmonisation of the current voting system, with anyone turning 18 years being eligible for voting with their national identification card. On the other hand, the IEBC states that whereas the laws in Brazil and India allow and facilitate electronic voting, the same is not provided for under Kenyan law. It further notes that the process of casting the ballot under Kenyan law is manual, owing to Regulation 69 of the Elections General Regulations. The commission banks on the 2017 Supreme Court judgment, directing the IEBC to provide both the electronic and printed copies of the voters' register in each polling station. According to the IEBC, Okiya is wrong in arguing that the standards contemplated under Article 86(a) of the Constitution can only be achieved through a fully digitised process. It explains that the General Election held in Kenya in 2007 raised several issues related to human intervention in the electoral process and its impact on the credibility and integrity of the entire process. "These concerns were succinctly captured in the report by the Independent Review Commission (IREC), commonly known as the Kreigler Report, with a key recommendation for the national electoral body to adopt a new voter registration system to improve their transparency, accuracy and verifiability of Kenyan elections," replies the IEBC lawyer. Mukele states that the commission acquired the BVR kit for electronic voter registration of individuals aged 18 and above and deployed it in 2013. The court heard that after the 2013 elections, a joint Parliamentary Select Committee instructed that the commission should establish an integrated electronic electoral system, which would now enable biometric voter registration, electronic voter identification, and an electronic results system. That is how KIEMS kits, which had a BVR component, came into being. The commission says it cannot synchronise its database with the Immigration department and Registrar of Persons to access data on eligible voters, as it is mandated to maintain and compile the register. " The petitioner holds the misguided belief that the complementary mechanism under Section 44A of the Elections Act must be electronic or digital for it to be simple, accurate, verifiable, secure, accountable and transparent," Mukele argues. He says that the issues raised are not ripe for determination, adding that the court is being asked to do the work of Parliament. Attorney General Dorcas Oduor, on the other hand, argues that the senator wants the country to sprint before it can crawl. She says Brazil became a republic in 1889 and had numerous elections that culminated in its fully digital election process. "Brazil is the only country in the world to conduct elections entirely through electronic voting," she says, adding that although Kenya needs to grow to Brazil's level, it cannot be done overnight. Ms Oduor asserts that Kenya has some parts with no technological access, and where there is, one cannot ignore the unreliability of Kenya's electricity. "We have to appreciate the shortcomings we have as a country, such that we more often than not have power outages, technology not being seamless in some parts of the country, and even the infrastructure itself to run the technology may not be there," she argues. The AG further argues that Omtatah has not disclosed to the court the ins and outs of software and data management and the security risks that come with an electronic voting and tallying system. According to her, it is unfair to compare the country with established democracies. According to her, there is evidence of computerised machines that lost votes, subtracted others instead of adding them. She cited the United States of America as among those that have failed to adopt a fully digitised electoral voting system due to failures associated with it. She said in Volusia County, in 2000, the machine gave Al Gore a final vote of negative 16,022 votes. In 2003, she added, in Boone County, the system showed that 140,000 votes had been cast while the county had only 50,000 residents. " It is not surprising that the applicable law has entrusted a discretion to the first respondent on the application of such technology as may be found appropriate. Since such technology has not yet achieved a level of reliability, it cannot yet be considered a permanent and irreversible foundation of the electoral process.

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