Two Other Cases Faced By IEBC That Might Bungle Elections

July 18, 2017, 11:41 pm

Two more cases that target the system for electronic identification of voters and another on the backup system have been filed against the electoral commission.

The first case, filed by activists Maina Kiai, Tirop Kitur, and Khelef Khalifa, is challenging the procurement process of the Biometric Voter Register (BVR) kits.

Members of the public verifying their voter details. By Chrispen Sechere.

The other suit, filed before the High Court by Bado Mapambano Movement, is seeking to block the use of a backup system to the electronic system.

Section 44 A

That would be the implication if the lobby group succeeds in having Section 44 A of the Elections Act, declared unconstitutional.

These cases essentially challenge the whole election system and could derail the August 8 elections.

They are in addition to the ballot paper printing tender case and the backup system case filed by the National Super Alliance (NASA).

There are separate cases against the BVR kits, the ballot printing tender, the results transmission process, and the law that was made in Parliament on elections.

Mr Kiai's group argues that the identification devices that were procured by the electoral body were not verified and thus cannot be used in the elections.

The case filed by lawyer Willis Otieno against the Kenya Bureau of Standards (Kebs) and the Independent Electoral and Boundaries Commission (IEBC) claims that the devices have not been subjected to pre-export verification standards and might contain ghost voters in a bid to enable rigging.

Due process

"This case aims at securing the due process of the law to secure the integrity of the electoral process and the sanctity of the votes to be cast in the next election and if it is not heard on a priority basis, this matter may be overtaken by events and hence rendered useless," the court papers read.

The trio argue that Kebs failed in its duty by not verifying whether the devices are up to standard and that this failure to follow the proper process taints the whole procurement process.

It is also claimed that there is a possibility of rigging the elections as the devices have not been confirmed to be tamper-proof.

"Misapplication of the law in the acquisition of the devices could result in violation of the right to a free and fair election," the petitioners claim.

The three lobbyists want the court to find that the procedure for importing and delivering the BVR kits was done in violation of the Constitution and at the same time force IEBC to acquire a new batch.

the export law cited by the trio says that IEBC ought to have acquired a pre-export certificate which shows that the items procured are of Kenyan standards.

This certificate is given by Kebs and is done before an entity imports items into the country.

They claim that the IEBC got an exemption, thus it cannot be ascertained that the kits are up to standard.

IEBC allegedly sought the waiver on the claim that there was little time left to the election date.

It was also claimed that the firm that supplied equipment that failed in the 2013 election is the same one that was contracted to deliver the kits this year.

"The petitioner seeks an order that, in keeping with the principles of public participation, the electronic/biometric voter identification devices be subjected to a process of public examination and verification as to their suitability for their intended purpose before they are deployed for use in the General Election scheduled to take place in August, 2017," the trio ask the court.

Bado Mapambano

In the case filed by Bado Mapambano lobby group, the court is being asked to declare section 44A of the Elections Act unconstitutional.

The contested section was introduced in the original 2011 Election Act through an amendment and allows a backup mechanism for identifying voters and transmitting election results.

The lobby claims that the section is against the Constitution, which provides for public participation and free and fair elections.

There is a separate case by NASA on the issue of a backup system, and the party argues that IEBC has not put out regulations to enable it to have a backup system that is not manual.



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