Lawyer Okweh Achiando says after the Supreme Court nullified the 2017 presidential election, the commission is cautious not to reveal the winner without all forms 34A being transmitted. He says the forms have to go through a rigorous verification process.
Okweh says although IEBC is receiving data from the servers, it is verifying if the same is correct from forms 34A, which have to tally with forms 34B. He asserts that although the commission says the process is electronic, it is still manual as it involves verifying physical forms and not just the numbers sent to the national tallying centre.
"The Raila 2017 case has changed the landscape where form 34B is automatically printed whenever you key in your details and you cannot tamper with it. Voting is not biometric. In my view, it is manual because it is not where you vote and it is transmitted immediately. In countries such as India, you just put your finger and it transmits," says Achiando.
According to him, knowing a winner would be faster in an electronic system.
The thrust of Raila's 2017 case was that Chebukati announced the final presidential result without 11,000 forms 34A and that some of the forms submitted were forgeries. Raila said the transmitted numbers were cooked and did not reflect the votes cast.
He also complained that the election was not conducted in accordance with the Constitution and the Election Act, including having party agents sign result forms.
In his reply, President Uhuru Kenyatta said the commission followed the law and used forms 34B to announce the winner.
He argued that all party agents signed the forms and there was no proof to show they were forged.
On technology, Uhuru said it was just to aid manual voting and that claims of an algorithm to generate results were fiction.
In a landmark declaration that was delivered on September 1, 2017, four judges led by then-Chief Justice David Maraga and Deputy Chief Justice Philomena Mwilu, judges Smokin Wanjala and Isaac Lenaola annulled the presidential election due to IEBC's failure to open the servers for verification.
According to the majority of judges, the 2017 election was not free, fair, accurate and verifiable.
Justices Njoki Ndung'u and Jackton Ojwang' (now retired) gave dissenting verdicts.
Lawyer Shadrack Wambui says the commission learned a lesson that election is not about the numbers but the process. According to him, this is the reason for the cautious approach it has taken in ensuring that the tallying, transmission and final announcement contain right and verifiable numbers.
"The level of preparedness of IEBC is quite commendable and they appear to have picked some serious lessons on counting, tallying and relaying of the results. Remember what the Supreme Court told us; the quantity of the election is to be measured against the quality of the election. The judgment told us we must go beyond the numbers," says Wambui.
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He says the numbers being tallied by media houses and the forms that are on the IEBC's portal ought to ensure accountability and transparency.
"The results you are seeing on KTN News, Citizen TV, NTV and online are not official but are ensuring transparency. The question of accountability is important and that is why they are being posted and you can easily find these results online," says Wambui.