Political parties, election observers to access IEBC voter register

Political parties and election observers will now have access to source code and audit logs relating to the IEBC’s continuous voter registration system, following a directive by the courts.

A court ruling by Justice Gregory Mutai has ordered the Independent Electoral and Boundaries Commission (IEBC) to grant political parties and election observers access to the records to allow them to independently scrutinise the system and monitor its ongoing operations.

Pundits have argued that the ruling is a significant development that will allow greater scrutiny of the technology supporting the 2027 elections and provide political parties with additional avenues to challenge electoral processes if the IEBC fails to comply with the court order.

Justice Mutai issued the order pending the hearing and determination of a petition by petitioner Gilbert Njoroge, who challenged aspects of IEBC’s technology and compliance with voter registration requirements ahead of the General Election.

To support his case, Njoroge presented extracts from a KPMG final audit report on the 2022 voter register, which he used to raise concerns about the accuracy and transparency of the current voter register.

According to the report, the audit recorded 481,711 registrations with duplicate or missing identification numbers, while 164,269 registrations had identification numbers that were invalid when compared with records held by the National Registration Bureau (NRB).

The report also noted that there were 246,465 deceased voters whose identification numbers still appeared in the register as of June 2022.

The court, however, restricted its ruling to the issue of the continuous voter register, noting that the broader question of IEBC’s technology had already been decided and could not be brought up again.

"The notice of motion is allowed only to the extent that the respondent shall, pending the determination of the petition, grant accredited political parties and election observers standing access to the source code and audit logs relevant to continuous voter registration," ruled Justice Mutai.

He said the issues currently before the court were whether the IEBC was constitutionally required to grant political parties and accredited observers access to the source code and audit logs, and whether the voter register had been published as required by law.

Justice Mutai said the current case was limited to questions concerning access to electoral technology and publication of the voter register.

He stated that the court’s findings, together with incomplete responses from relevant government departments, had raised genuine questions concerning the accuracy and transparency of the voter register.

“These are genuine, updated findings, bearing on the substance of the petitioner’s transparency and accuracy concerns,” the judge observed.

He, however, held that the extracts tabled before the court did not contain all sections of the audit report dealing with database and system controls or the IEBC’s responses to the findings. Further, he said the report contained restrictions on reliance and disclosure of its contents.

Justice Mutai also ruled on the issue of access to electoral technology, in which the petitioner had stated that IEBC’s technology contractor had declined to give access to its source code and audit logs on grounds of intellectual property. He noted that the issue would have to be considered at a full hearing.

“This is sufficient to cross the first modest threshold of arguability,” he said.

He, however, declined to grant interim orders against the continued use of the technology, noting that the 2026 by-elections had already been conducted using the current technology.

Justice Mutai further pointed out that Kenya’s elections use a hybrid system that incorporates biometric voter identification alongside physical result forms, which can be checked through manual recounts and court oversight.

The judge also explained that he considered the public interest in allowing constitutionally mandated electoral processes to continue against the petitioner’s interest in transparency.

“The suspension of constitutionally mandated public process is a grave step to be taken only where the case for doing so is clear and compelling,” he noted.

The court ruling means that the petition by Gilbert Njoroge will proceed but will be restricted to the question of access to source code and audit logs and compliance with voter-register publication requirements.

It also means that the court has not declared  the IEBC technology unsuitable but has granted political parties and accredited observers interim access to specified technical records.

Former Attorney General Justin Muturi has described the ruling as a significant development for transparency in Kenya’s electoral process.

"The petition, which was opposed by both the United Democratic Alliance and the IEBC, places renewed emphasis on transparency, accountability and verifiability in Kenya’s electoral process," he said.

Adding, "It underscores the constitutional principle that election data and records must be capable of independent scrutiny where the law permits."

The petition by Njoroge revives controversies that have surrounded Kenya’s election technology in the recent past. Key among them was the refusal by Smartmatic International, the company procured by IEBC to provide technology for the 2022 election, to allow Raila Odinga’s team full access to its servers as ordered by the Supreme Court.

Shortly after the hotly contested election, the Supreme Court ordered IEBC, among other things, to grant the petitioners access to any server used to capture images of Forms 34C.

But in response, Smartmatic International noted that providing full access to the servers would infringe on its property rights. Through a letter, it said allowing a third party access to its information would also render it insecure for any future use.

“Providing full access would infringe our intellectual property rights,” read the statement from Smartmatic.

“Providing third parties access to our source code, and security features including transmission certificates and encrypted keys would render the system insecure – as it is today – for any future use in Kenya or anywhere else in the world. In addition to violating our IP rights, this would also jeopardize elections in other countries that are using or have used our systems," it further read.

It, however, recommended that IEBC make all "data related to the Results Transmission System and the Results Transmission System logs" available, arguing that this would be sufficient to audit the results transmission and verify that it worked properly.

Further, the ruling comes at a time when there have been growing public concerns over the credibility and transparency of the IEBC voter register following controversial remarks by leaders allied to the ruling United Democratic Alliance.

Recently, UDA Secretary General Hassan Omar suggested that fingerprints of people who die shortly before polling day could be harvested and used on biometric voter registration kits to secure President Ruto's re-election.

Omar made the remarks in Mombasa on Friday, September 11, where he also declared his intention to contest the Mombasa governorship. Recent reports have also placed the remarks in the September 10-11 period, so the exact date should be checked against the original recording before publication.

“We will harvest fingerprints of individuals who die close to the election day before they are buried and use them on the Biometric Voter Registration (BVR) kits to secure victory since the coming General Election is a do-or-die battle and will ensure that President Ruto secures re-election,” Omar said.

His remarks came against the backdrop of similar controversial statements by politicians aligned with the Kenya Kwanza administration over the past year, raising concerns about the language being used around the 2027 contest.

In July last year, Wajir Woman Representative Fatuma Abdi Jehow said leaders from North Eastern were prepared to ensure President Ruto served two terms, even if they did not have enough votes.

“Sisi kama wabunge wa North Eastern, nikiongea kutoka Wajir, sisi maneno yetu ni fupi tu, two terms. Sisi tunangoja debe iletwe, hata kama hatutakuwa na votes tutamwibia...hio si siri,” Jehow said.

Her remarks triggered criticism, with questions raised over the integrity of the electoral process and the possibility of politicians normalising electoral manipulation ahead of the vote.

Tiaty MP William Kamket also made remarks interpreted as suggesting that votes could be added if the numbers were insufficient to secure Ruto’s re-election.

Speaking in August last year, Kamket referred to comments by Kapseret MP Oscar Sudi on filling the ballot box to guarantee the President’s victory.

“Oscar and I say harsh things. He says if the ballot box does not fill up, we will add. I say it in another way, but we say the same thing: if the votes are not enough, we will ensure that they are enough, whatever comes may,” Kamket said.