Appeal court dismisses Nasa manual backup case

The Independent Electoral and Boundaries Commission (IEBC) has been given the go-ahead to use manual backup during Tuesday’s General Election, if the electronic system fails.

The Court of Appeal dismissed a case by Nasa, clearing the way for the electoral commission to use the manual register, if the kits fail.

VOTERS' REGISTER
But as Justices Roselyn Nambuye, Martha Koome and Daniel Musinga dismissed Nasa’s case, they directed the electoral body to adhere to a memo sent to all presiding officers by the commission’s CEO Ezra Chiloba.

The memo was part of the evidence filed in court by the commission and no party opposed it.

In the memo, Mr Chiloba said the presiding officers can only resort to the use of printed voters’ register only after approval from the commission upon confirmation that Kenya Integrated Elections Management Systems (Kiems) kits have completely failed and that there is no possibility of repair and replacement.

HIGH COURT
Mr Chiloba further advised the presiding officers that they would resort to a complementary mechanism if a voter fails to be identified using biometrics.

The search for a voter’s name will be done in the presence of all agents and the voter will then fill in form 32A before being issued with six ballot papers.

Nasa had opposed plans by the electoral body to use a register, generated from the voter electronic system, to identify voters, in case the system fails on the polling day.

Their case was first dismissed by the High Court necessitating the appeal.

FRAUD
But appellate judges upheld the High Court’s ruling, saying they found no basis to set it aside.

According to Nasa’s lawyer Paul Mwangi, the introduction of a manual backup is a plan to rig the polls.

“One of the dangers of the manual system is that it has no inbuilt mechanism to stop fraud. It is open to manipulation,” he had argued.

ISSUE
In the appeal, the polls team and Jubilee wondered why Nasa had to wait until the last minute to challenge the regulations published in February.

Through lawyer Paul Muite, the commission stated that the regulations were subjected to public participation, when Parliament held joint committee sittings late last year and in early 2017.

Nasa moved to court seeking to compel the commission to exclusively use electronic system.

The judges said this would throw the election into jeopardy if the electronic system fails.