IEBC have ICT audit delay to blame for court verdict

Monday September 4 2017

By JOHN WALUBENGO
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So, the Supreme Court of Kenya ruled on the presidential election petition verdict last Friday, after two weeks of intensive legal arguments and counterarguments.

The country's court of last resort ruled that the presidential election had irregularities and illegalities, necessitating a repeat of the process.

Whereas the court found no evidence of misconduct by the third respondent, President Uhuru Kenyatta, it put the Independent Electoral and Boundaries Commission (IEBC) squarely on the spot for various acts of omission and commission.

The full judgment is not yet out, but it is clear from the ruling that IEBC did not follow the basic constitutional principles of delivering a free, fair, verifiable and accurate election, as prescribed in Article 86.

Additionally, Section 44 of the 2016 Elections Act says in part:

The Commission shall ensure that the technology in use is simple, accurate, verifiable, secure, accountable and transparent.

In its ruling, the Supreme Court states the IEBC failed, neglected or refused to conduct the Presidential Election in a manner consistent with this legal provision. The court further stated that these acts of omission and commission affected the integrity of the presidential election to the point where it had to nullify the outcome and order fresh elections.

What could have informed the courts to make such far-reaching conclusions, particularly in the light of the fact that the third respondent was found not to be culpable?

DELIBERATE STALLING

Could it be because of hacking? Could it be because of some mysterious algorithm that may have put the third respondent ahead of the petitioner by a fixed margin of 11 per cent?

As highlighted in my previous blogs, I still have major reservations about the hacking and algorithm theories, but IEBC did not help clear matters by stalling on access to its technology systems for audit. 

This stalling is reported in the official ICT Audit report as submitted to the Supreme Court by the Registrar.

This was tragically supported by IEBC's lawyer, Senior Counsel Paul Muite, who claimed that the audit access was delayed because the servers were in Europe - and the technicians were asleep.

It was evident to the court that, perhaps, IEBC had something to hide. This was perhaps the biggest single reason that may have influenced their verdict. 

What is this that the IEBC is so uncomfortable with, and is so willing to be ridiculed for, by hiding behind unacceptable reasons such as remote technicians who support a 24/7 cloud service being asleep? 

CORRECTIVE MEASURES

We shall perhaps never know until IEBC fully cooperates, as ordered by the courts.  And it should, even if for the small reason that it would reduce the amount of rumours and speculations surrounding the transmission of results that continue to plague our social media.

Furthermore, unless we get to know what exactly what transpired within IEBC's transmission systems before the next election, we are likely to be back to the Supreme Court after the 60 days, because no corrective measures would have been instituted.

IEBC therefore, urgently, needs to put in place transparent, verifiable systems that allow losers to congratulate winners based on the fact that their loss was clear enough to invalidate the need to petition the Supreme Court.

Unless and until this happens, IEBC will continue putting the country in an endless cycle of electioneering, which is, socio-economically speaking, not sustainable.

IEBC has an obligation to open up any pending access to their servers to scrutiny and subsequently fix anything that may have gone wrong before the next election. It is the best thing they can do for the winners, the losers and the country.

Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @Jwalu