By Shitemi Khamadi
In 2007, the then Electoral Commission of Kenya (ECK) chair Samuel Kivuitu would stun the country with these words, “I am not happy to see how the results are coming because there is no reason why results would be delayed.
We are here on a Saturday and elections were held on Thursday… We can’t trace our officers. I don’t know where they are.”
In a later interview when asked by KTN journalist Boni Odinga asked whether President Mwai Kibaki had won fairly, he said he doesn’t know unless he checks.
These words contributed to inflaming the country leading to post-election violence that led to over 1000 people dead, livelihoods destroyed and communities shuttered.
He would later clarify that he meant he doesn’t know if President Kibaki won fairly.
This aftermath informed the Independent Review Commission (IREC) inquiry popularly known as the Kriegler Commission in February 2008 to inquire into all aspects of the 2007 General Elections with particular emphasis on the presidential elections.
The Commission made a raft of institutional changes key among them was results transmission.
But ten years later, the Kenyan Supreme Court nullified the Presidential elections where the incumbent, President Uhuru Kenyatta had been delared the winner.
It was declared null and void on basis that the presidential results transmission failed the legal test.
It seemed the country had failed to implement Kiriegler’s commission’s recommendations to the latter and this would bite it.
Supreme Court nullifies Uhuru’s victory
On September 1st 2017, the Kenyan Supreme Court shocked the world by annulling the Presidential election for what they called “irregularities and illegalities in the transmission of results.”
The historic decision was hailed as the first on the African continent and one that showed brevity and courage by the Judiciary.
But the decision could also have left some Kenyans unsure on whether the elections are manual or electronic.
“Irregularities affected the integrity of the poll,” Chief Justice and President of the Supreme Court, Justice David Maraga stunned voters.
To midwife the electoral process between 2008 and 2013, the Interim Independent Election Commission (IIEC) was established and mandated to develop a modern system for collection, collation, transmission, and tallying of electoral data.
The first national task of the IIEC was to conduct the referendum that paved way for the 2010 Constitution.
Hailed as revolutionary for its bold provisions, it authors in Article 86 that whatever voting method is used, the system should be ‘simple, accurate, verifiable, secure, accountable and transparent’.
It also asserts that not only should the results from the polling stations be openly and accurately collated and promptly announced by the returning officer but also that appropriate structures and mechanisms to eliminate electoral malpractice be put in place, including the safekeeping of election materials.
It is on this basis that the country adopted the Kenya Integrated Election Management System (KIEMS).
It has three main components. The first is registration of voters where data is captured biometrically, the second is identification of the voters at the polling station to avoid manipulation and the third is transmission of results.
One of the wins in the result transmission system is that it does not allow an election official to transmit results with figures more than registered voters at any polling station.
In 2007, Mr. Kivuitu had admitted that he sent away a returning officer from Maragua who brought him results showing that the turnover was 115 percent.
The move seals loopholes in manipulating poll results if the results transmission system works.
Come 2013, the Independent Electoral and Boundaries Commission (IEBC) half-heartedly deployed technology in the elections.
It sought to have it work in four areas, voter registration, voter identification, votes transmission and candidates nomination for printing of ballot papers.
Voter identification at the ballot and results transmission failed but the others were successful.
At the Supreme Court, the Commission was able to wiggle out arguing that the deployment of technology was not mandatory and the Court agreed with them.
Various stakeholders conducted analysis of the elections and in one done by Ugandan Pontius Namugera, he asserted that there was failure in technology integration deployed by the electoral commission.
His analysis affirmed that voter identification, biometric voter registration and results transmission had no synergy since they were created by different entities and they failed to integrate them.
The report was adopted by the IEBC and informed the deployment of KIEMS kit in 2017.
Section 44 of the Elections Act elaborates the deployment of technology in an election and expects that the electoral body will procure the “technology necessary for the conduct of a general election at least one hundred and twenty days before such elections; and test, verify and deploy such technology at least sixty days before a general election.”
A joint committee of Parliament chaired by Senators James Orengo and Kiraitu Murungi was behind the changes in the Elections Act, to not only make it mandatory to deploy technology for the 2017 elections and beyond, but also give some more clarity on how the technology should be used.
But following the nullification of the presidential election in 2017, Parliamentarians sought to amend the Elections Act to make it discretionary.
It is during this debate that Senator Orengo would utter the famous words that governments eat their own children and that the government would punish their own more than they would punish him.
President Uhuru Kenyatta did not sign the amendments into law neither did he respond to it with a memorandum back to Parliament.
It therefore became law until Katiba Institute went to court to challenge its constitutionality. In a decision rendered in May 2018, the High Court nullified most of the amendments.
Speaking before editors at the Kenya Editors Convention in 2021, IEBC Legal Manager Salome Oyugi said the commission had undertaken an audit of the election laws and proposed amendments to make the voting more secure and transparent.
Among the changes the commission seeks to make is to allow them use alternative mechanisms for transmitting results, should technology fail, like it did in 2017 where some areas lack 3G network.
The commission wants section 44 A of the Act amended to allow a complementary mechanism of transmission of presidential results.
This is meant to cure the reason for annulling President Uhuru Kenyatta’s victory on August 9th, 2017.
The proposed amendment, among 19 others in Parliament, will see Presiding Offices being required to move to the point nearest to the polling station, and which has good network to transmit the results accordingly.
This is in the event of result transmission failure at the polling station.
“If there is no network, the presiding officer will have to proceed to the constituency tallying center and transmit results from the constituency tallying center,” the proposed amendment reads in part.
The Presiding Officer will also need to inform the constituency returning officer of the failure of the kit and ask for replacement or repair of the kits.
In the event that the KIEMS kit cannot be repaired or replaced, the commission wants the presiding officer to document the incident in the polling station diary, which will then be signed by all the presidential candidates’ agents.
These proposed changes could be party informed by why the presidential polls were annulled by the Supreme Court on account of results transmission.
Two main reasons informed the court decision and which was played in the gallery by lawyers representing the IEBC and Jubilee in court as they publicly differed.
The first is the IEBC’s interpretation of the Maina Kiai, Khelef Khalifa, and Tirop Kitur decision who sought High Court’s interpretation on whether results at the constituency level are final and how returning officers at the Constituency should behave in tallying and handing over to the national tallying center.
Delivered in April 2017, a three Judge bench, Justices Aggrey Muchelule, Weldon Korir, and Chacha Mwita said among others that the constituency returning officers open collation and tallying of presidential results from polling stations and issuing of a certificate in Form 37 are final.
IEBC argued and even lost on appeal that the constituency returning officer results are provisional and are subject to confirmation by the Commission.
The court therefore faulted the commission for having made a declaration of the winner based on the results transmitted from forms 34B at the constituency, even before it received result forms 34A from all the polling stations.
The second was the 3G network coverage in the country. The IEBC needed to publish 14 days to the elections, the areas that do not have 3G network so that everyone is aware as well as the steps being taken to transmit results from these areas.
A report by the Communications Authority (CA) asserted that over 11, 000 polling stations did not have 3G network but this information was not synchronized with the telecommunications companies that had been contracted to provide the service.
As a result, if an area had been identified as not having 3G network, the specific telco was not informed so as they can remedy it. If for instance an area contracted to Airtel did not have the network, Airtel needed to be informed, but this did not happen.
Voting is manual
Technology has certainly reared its ugly head at the point of need in the electoral process in Kenya as evidenced in 2013 and 2017 elections.
In 2013, the Election Voters Identification Device (EVID), the system set up to verify voters and remit results to the national tally center, failed, forcing the IEBC to revert to a manual count.
In 2017, the tablets used for the voter identification and results transmission worked well. They however failed to transmit some results on account of some of areas not covered by the 3G internet grid.
Despite the technology use in the election process in Kenya, voting is still manual, where voters physically go to polling stations they are registered and cast their ballot.
It is the registration and identification of voters and the transmission that is done electronically.
Although the September 2021 visit by the then Estonian President Kersti Kaljulaid had broader ICT agenda on the cards, the country was first in the world to embrace e-voting by testing online voting for municipal elections in 2015.
It has continued to implement the system and in the last election implemented electronic voting alongside physical voting.
How the IEBC and Kenyans at large live with the challenges of technology and adopt, only time will tell.