By Wahome Thuku
Nairobi, Kenya: The electoral commission has opposed an application seeking to have it compelled to produce all its electronic equipment used in the March 4 presidential elections.
The commission and its chairman Isaack Hassan described the application by Prime Minister Raila Odinga as an abuse of the court process and a side show to distract the court from the main petition.
Commission lawyer Nani Mungai said the application filed last week seeking a forensic audit of the elections is asking the court to compel the Independent Electoral and Boundaries Commission (IEBC) to physically produce all its equipment, 14,000 laptops, over 30,000 Biometric voter registration kits and thousands of result transmission handsets.
“We are being asked to produce the entire infrastructure of the IEBC,” he pointed out.
In the petition argued by lawyer Ochieng Oduol, the petitioner is asking for logs of six servers used in transmission of the results, to establish why the systems collapsed.
“The only way the court can be satisfied that systems failed is by providing the logs,” he said. “How can we verify the electronic information without looking at what the machines said? The IEBC does not indicate why the electronic systems failed.”
Oduol said the IEBC has a constitutional mandate to conduct an election that complies with the Constitution.
“We want the electronic logs which will tell us if there was transmission, if it was successful and if not, what was the error,” he said. Mungai said Raila’s legal team was demanding the equipment and all the information to access them, including passwords, which did not form the basis of their case.
“They are not interested in the data in the system which we have provided in full. They are only doubting that data and want the equipment,” he claimed.
Mungai said there is no legal basis for conducting a forensic audit, adding that a lot of information sought was unnecessary.
He said if the order was issued it would form a dangerous precedent for other petitioners.
The lawyer maintained there is no constitutional or statutory requirement to conduct electronic transmission of results. “We only have discretion to deploy technology in management of election. Other processes had been conducted manually including marking of ballots and counting,” he said.
Hassan’s lawyer Ahmednassir Abdulahi accused the Prime Minister of “attempting to reconstruct his petition and going on a fishing expedition”.
He said the Supreme Court has no powers to issue some of the prayers sought and that the constitutional provisions cited in the application could not apply.
“This is an attempt to cannibalise and vandalise a public institution,” he added.
The lawyers said the court could not issue orders against companies that were not parties in the petitions.
Lawyer Fred Ngatia and Katwa Kigen for the President-elect Uhuru Kenyatta and his deputy William Ruto said the court should not help Raila in the case against them.
“Asking court to help them mount their case is irregular,” Kigen said. “You will have assisted the petitioners against the respondents in an adversarial process.”