Some Key (IMO) points regarding the use of technology in elections and if it can be a valid grounds for dismissal of electoral results; from the Judgment by the Supreme Court of Kenya ruling on the petition against the Presidential Election results. (All emphasis mine)
1. ELECTRONIC SUPPORT FOR THE ELECTORAL PROCESS: ITS ROLE IN THE VALIDITY OF THE PRESIDENTIAL ELECTION
The Respondents state that, contrary to the averments of the Petitioners, technology was never envisaged by the 1st Respondent as the sole means of registering voters, of identifying them on voting day, or in the transmission and tallying of results. Electronic Technology is utilized in the elections as part of other numerous checks and controls built in the entire electoral process, to ensure that the 1st Respondent (The Electoral Commission) fulfils its mandate under Article 81 of the Constitution, to deliver free and fair elections. Technology, they argue, is not a replacement or alternative to the manual voting, counting, tallying and transmission processes, that are expressly required by law. Further, the Respondents contend, the Petitioners also misunderstand the policy and legal framework regarding the use of technology.
2. On the difficulty in procurement of large scale technological solutions within limited electoral timeframes.
In the instant case, there is evidence that the EVID and RTS technologies were used in the electoral process at the beginning, but they later stalled and crashed. Different reasons explain this failure but, by the depositions of Dismus Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.
3. In conclusion on if failing technology can be grounds to dismiss an election
From case law, and from Kenya’s electoral history, it is apparent that electronic technology has not provided perfect solutions. Such technology has been inherently undependable, and its adoption and application has been only incremental, over time. It is not surprising that the applicable law has entrusted a discretion to IEBC, on the application of such technology as may be found appropriate. Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process. This negates the Petitioner’s contention that, in the instant case, injustice, or illegality in the conduct of election would result, if IEBC did not consistently employ electronic technology. It follows that the Petitioner’s case, insofar as it attributes nullity to the Presidential election on grounds of failed technological devices, is not sustainable.
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