Declaring the IEBC technology committee unconstitutional was clearly a mistake

Tuesday September 12 2017

By JOHN WALUBENGO
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The recent, widely circulated 12-point memo from the Chair of the Independent Electoral and Boundaries Commission (IEBC), Mr Wafula Chebukati to his CEO, Mr Ezra Chiloba got me wondering about some critical committee that was provided for by the Elections Amendment Act No 36 of 2016. It amends the Elections Act , 2011 Section 44, paragraph (5) to read in part:

‘The Commission shall, for purposes of this section and in consultation with relevant agencies, institutions and stakeholders, including political parties, make regulations for the implementation of this section and in particular, regulations providing for

(a) the transparent acquisition and disposal of information and communication technology assets and systems;

(b) testing and certification of the system;

(c) mechanisms for the conduct of a system audit;

and so on.

This section, through the Elections Technology Regulations of 2017, gave birth to the formation of the Elections Technology Advisory Committee (ETAC), with membership included technical personnel from political parties, ICT professional bodies and other stakeholders.

TESTING AND CERTIFICATION

ETAC was chaired by the IEBC Commissioner in charge of ICT, with the IEBC Director as the Secretary. Its mandate is defined under part XI of the Elections Technology Regulations of 2017, which states in Section 32 paragraph 2:

‘The Committee shall—

(a) regularly engage with stakeholders in order to sensitise them on the progress of adoption and use of election technology in the electoral process, and

(b) receive regular updates on the status of election technology

In other words, the Chairman of IEBC, Mr. Chebukati, the political parties and professional bodies already had a legal forum and mechanism in which to engage on all matters related to IEBC and elections technology.

All pertinent technology queries in the memo would have found objective resolutions from a single sitting of  the ETAC. 

As it is now, we have a partisan situation where serious ICT queries have been raised, but politicised such that whatever the response that may be given, one side of the political divide is bound to discard it, while the other may readily accept it.

It is a poisoned environment that clouds the issues through political and ethnic lens to the point where we may never get to know the accurate or truthful position on the issues raised.

And this means going into the repeated election with the problems not fixed given the strongly held partisan positions.

PUBLIC FIASCO

So why couldn’t Mr Chebukati use the established ETAC framework to get to the bottom of technology queries?  The simple answer is that sometime in June this year, some busy Kenyan went to the High Court and managed to convince a judge to declare ETAC unconstitutional

ETAC was declared unconstitutional supposedly because it would interfere with the constitutional independence of IEBC.

This court ruling subsequently led to the disbandment of ETAC, setting the stage for current public fiasco we are witnessing. Serious ICT issues are being raised on social media without any assurance of proper resolution.

In the absence of a framework that allows stakeholders to engage IEBC on technology issues, we shall continue to witness ICT facts mixed with a large dose of fiction being transacted online by anyone and everyone.

It's high time someone went back to court and appealed the decision of the High Court so that we can solve our technology problems in a sober manner.

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