“An election is not an event; it is a process. For justice to be seen to be done, even those who lose should do so rightly. Elections must be transparent, verifiable and open.”
Emeritus Chief Justice of the Republic of Kenya, George Maraga,
Elections are a momentous period in every country, that confronts the power of the people to exercise their sovereignty, whether by devolution or in a centralized system, to democratically delegate that power to representatives assigned to perform constitutionally established mandates. Kenya, therefore, like many countries, is no visitor to democratic elections. However, the conduct of elections in Kenya has not only been a controversial topic in international trends but has seen to it that its history as the first African nation and the third in recent world history to abrogate its presidential election result[i] consequent to September 1, 2017, Supreme Court decision remains a consistent conversation.
The conversation surrounding what amounts to a free, fair and credible election has become a thematic controversy with which this article seeks to highlight in an effrontery to investigate whether fraud in the usage of electoral technologies is a prevalent factor.
The Emeritus Chief Justice in one of the more famed quotes described elections as a process and to that this paper will detail hereinbelow noting the applicability of electoral technologies in the whole process.
THE ELECTORAL PROCESS[ii]
The Elections Act in upholding every adult citizen’s right to vote and participate in elections[iii] mandates the Independent Electoral Boundaries Commission to register voters without unreasonable restrictions.[iv] A person who qualifies to be registered under section 5 of the Elections Act shall make an application in the prescribed manner to the Commission. Thereafter, all applicants for registration shall be registered in the appropriate register by the registration officer who shall transmit the information relating to the registration of the voter to the Commission for inclusion.
On the date of elections, constitutionally slated on the second Tuesday in August in every fifth year, the Independent Electoral and Boundaries Commission is mandated to ensure that whatever voting method is used, the system is simple, accurate, and verifiable, secure, accountable and transparent.[v]
Following the conduct of voting, the votes cast are counted and tabulated and the results are announced promptly by the presiding officer at each polling station. the IEBC shall ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer.
According to the 2017 general election, an elaborate regime of electoral laws including amendments to the Elections Act was made for the first time to introduce the Kenya Integrated Electoral Management System (KIEMS) which was a new device intended to be used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations simultaneously to the Constituency Tallying Centre (CTC) and the National Tallying Centre (NTC).
The KIEMS system electronically identifies people in its automated poll book known as the Electronic Voter Identification (EVID) system. It is comprised of a laptop that is attached with a fingerprint reader and a handheld device with an in-built fingerprint reader. It electronically captures voters’ facial images, fingerprints and civil data and creates information that supports a voter’s identification on the polls day. It equally has a system that enables presiding officers present to transmit results to observation centres through specially configured mobile devices.[vi]
With such specifications aforementioned, as opposed to the traditional authentication system manifest through the queueing, the biometric system using digital skills for identification and tallying, has had its fair share of arguments for and those against it.
The introduction of such biometric technologies (BT) in Kenya has raised concerns about the effect on voter turnout and voter confidence. Questions have also been raised about its effectiveness as an anti-ragging and anti-fraud solution that would ensure credible elections.
Those claiming, argue that at the pre-election stage, the biometric system use enhanced election credibility as evidenced by the computerized voter register.
at the election stage, biometric technologies serve as an effective anti-rigging measure by eliminating cases of unregistered voting, ballot stuffing and multiple voting.
The biometrics system offers some sort of layered security in its AI-powered machines that not only assures antispam technologies but also, in its multimodal technology, ensures multifactor authentication preventing individual fraudsters from manipulating the ingenuity of the system.
However, this was not the case ensuing the dispute post-2017 elections as many opposed the use of KIEMS as a manipulator of electoral integrity.
Following the heated dispute in the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others,[vii] the effectiveness of the use of biometric technology was disputed as a majority claimed that not only did it not serve its intended impact, but also promoted rigging.
In essence, therefore, while the biometrics seemed to focus on curbing individual fraudsters themselves, it failed to look at what they were doing. It failed to safeguard against large scale manipulation from the system. A public outcry, evidenced in the petition, ensued to “open the servers” to enable the public to publicly verify the records of tallying and voting, a plea that fell on deaf ears.
An investigation into the offences relating to the use of technologies as envisaged in section 17 of the Election Offences Act provides the below:[viii]
A person who, concerning the electoral process—
(a) steals or intentionally causes damage to electronic equipment;
(b) knowingly or intentionally conceals, destroys, alters or knowingly or intentionally causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network;
(c) with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person, destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility;
(d) accesses the whole or any part of a computer system without authorization;
(e) intercepts, by technical means and without authorization, any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data;
(f) intentionally or recklessly alters or interferes with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or a computer program, electronic document, or electronic data message without authority, including by the introduction or transmission of viruses;
(g) uses, produces, sells, procures, imports, distributes, or otherwise makes available, without lawful authority—
(i) a device, including a computer program, designed or adapted primarily to omit any of the offences under this Act; or
(ii) a computer password, access code, or similar data by which the whole or any part of a computer system may be accessed with the intent that it be used to commit an offence under this Act;
(h) knowingly inputs alter, or deletes computer data with the intent that the result be considered or acted upon for legal purposes as if it were authentic, regardless of whether or not the data is directly readable and intelligible; or
(i) intentionally acquires, uses, misuses, transfers, alters or deletes another person’s identification information,
commits an offence and shall be liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding ten years or to both.
A proper analysis of this provision clearly shows the prosecution of individual offenders and does not address the sanction that possibly could infer on state organs culpable for a similar offence.
Paying regard to Lord Denning’s assertions in the English Court of Appeal decision in Morgan v. Simpson:[ix]
- If the election was conducted so badly that it was not substantially under the law as to elections, the election is vitiated, irrespective of whether the result was affected.
- If the election was so conducted that it was substantially under the law as to elections, it is not vitiated by a breach of the rules or mistake at the polls-provided that the breach or mistake did not affect the result of the election.
The above dicta sets precedent to annul or rather vitiate unlawfully conducted elections as would ordinarily have been the scenario at instances of fraud. However, it is evident from the non-disclosure of the servers (KIEMS) that ought to have ensured transparency of the process, that fraud is still a largely possible encounter in ensuing elections.
From the foregoing discussion, a question begs, at whose behest was the new voting technology introduced?
The 2022 general elections are three months away. Interested contestants are busy exercising their democratic rights to participate in voting and contesting for seats. Is the government culpable to provide free and fair elections or would the outcome of the elections indicate yet again system apathy against its system through the use of questionable voting technologies? Be my jury!
Beverly is an Associate Editor at The PALM
[i] Seema Shah, Elections Are a Process, Not An Event: The Supreme Court’s verdict on meaningful elections
[ii] Elections Act, No. 24 of 2011.
[iii] The Constitution of Kenya, 2010, Article 38 states:
(1) Every citizen is free to make political choices…
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors…
(3) Every adult citizen has the right, without unreasonable restrictions:
- (a) to be registered as a voter;
- (b) to vote by secret ballot in any election or referendum
[iv] See also article 83 of the Constitution of Kenya, 2010
[v] The constitution of Kenya, 2010, article 86
[vi] Joseph Sosi, Things Kenyans need to know about the new IEBC KIEMS kit before and after they vote. Available on https://www.standardmedia.co.ke/ureport/story/2001250595/what-kenyans-need-to-know-about-the-iebc-kiems-kit-and-provisional-election-results-transmission
[vii] Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others  eKLR
[viii] Section 17, The Election Offences Act, No. 37 of 2016
[ix] Morgan v. Virginia, 328 U.S. 373 (1946)