Listening to the back and forth in the “talks about talks” currently ongoing between Azimio and Kenya Kwanza as they prepare for bipartisan talks, I have noted the insistence by Azimio that the opening of the servers is an irreducible minimum.
Having been intensely involved in Kenyan elections, I am convinced that save for voter identification, we need to eliminate the electronic portion of our electoral process. Until the 2013 elections, elections were manual in every respect.
Voters were manually identified, ballots cast and counted manually, and announced without the backup electronic verification. To enhance verifiability, the electronic transmission system was introduced in 2013.
Has it improved the legitimacy of our elections? Walk with me through the current election process. After one is identified through the Electronic Voter Identification system, they vote manually.
At the end of the voting period, the ballots are manually counted in the polling room in which the voting took place. They are announced publicly and physically entered into the respective Form As, depending on the election. These forms are signed by all available agents.
Because presidential votes are counted first, most agents tend to be available when this process is completed, which is why more than 90 per cent of Forms 34A are signed by the presidential agents.
The electronic transmission system comes in after this step where the signed Form 34A is electronically transmitted to the IEBC. In the 2022 election this was only done for the presidential election.
The MCA votes, votes for 3 parliamentary seats and governor seats were handled solely manually.
Once the results are transmitted electronically to the IEBC, they are downloaded to a portal which is available to all. Meanwhile, the results announced at the numerous polling rooms and contained in the Form 34A are delivered to the constituency tally centre where they are then tallied, meaning added up. This tallying process is entirely manual.
At each of these constituency tally centres, the results are also publicly announced. What then happens for the presidential results is that the Form 34B, an aggregation of all presidential results in a constituency, and the Form 34As from which the 34B was prepared, are physically transported to the national tally centre in Nairobi.
The physical forms delivered to Nairobi are used to prepare the final Form 34C, which is an aggregation of all Form 34Bs. All that the IEBC does, and which the presidential agents are required to verify, is that the Form 34B is a correct addition of the Form 34As.
It is important to remember that courtesy of the Maina Kiai decision, the results in Form 34A that are announced at the polling station are final and cannot be changed by the IEBC.
The electronic forms become important, not because they are the ones used to announce the results, but as a verification document along with agents’ forms that may be available.
Consequently, in the absence of evidence of tampering with the physical Form 34As that are used to announce the results, claims about interference with the electronic system may be interesting, but adds no substantive value to the discourse.
What complicates the matter is that claims about interference of an electronic system have no way of being objectively challenged. Even those who ask for server to be opened could believably claim it was interfered with once it is opened. It is a zero-sum game.
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What convinces me that the electronic system is just an unnecessary expense is that for the five other elections where the electronic system was not used, there have been no allegations that these results were not legitimate because they lacked verifiability through an electronic transmission component.
Very few petitions have been filed against these elections and of those filed; most have been thrown out by the courts as they had no basis.
Meanwhile the presidential election remains disputed, courtesy of the need to “open the server”. Let us agree, in 2013, 2017 and now 2022, what the electronic system has produced is huge costs, much heat, and no light. Let us jettison it and look for other more rational and objectively verifiable means to ensure a fair poll.
The writer is an advocate of the High Court of Kenya