The High Court on Friday cleared the way for the Independent Electoral and Boundaries Commission to use a manual backup during the August 8 polls.
The judges, while dismissing a petition by National Super Alliance (Nasa), said, “It would not be feasible to declare that the elections to be held on August 8, 2017, be exclusively electronic”.
Nasa moved to court seeking to compel IEBC to use electronic system to identify voters’ and transmit results in the forthcoming elections.
The opposition party argued that IEBC has failed to put in place mechanism to support the establishment of a system to complement the electronic system.
But the court reasoned that the electoral body had already put in place a complementary mechanism, as required by the Section 44(a) of the Elections Act.
The judges said these mechanisms are contained in Regulations 69 and 83 of the Elections Regulations.
Justices George Kanyi Kimondo, Hedwig On’gudi and Alfred Mabeya further disagreed with the opposition alliance that the IEBC should postpone the forthcoming elections, should the electronic system fail on the voting day.
“The court has to consider the impact in case the exclusive electronic system fails. It would throw the entire election into jeopardy and imperil our democracy.
"It would run counter to the political rights of citizens as enshrined in the Constitution,” the judges ruled.
The judges said Parliament has already been dissolved and Section 55(b) of the Elections Act, which Nasa argued could be invoked by IEBC to postpone the polls, can only be triggered when the elections are ongoing but something drastic happens, which could prevent the conclusion of the exercise in a polling station or stations.
The three-judge bench ruled that technology can fail, just like it happened during the 2013 General Election, and an analysis of technology from other countries revealed that technology can be hacked, is susceptible to software bugs, power outages and it can intentionally or accidentally failed.
They said the words used by Parliament on the establishment of the complementary mechanism were not ambiguous and had the MPs wanted to do away with manual backup, there was nothing stopping them from stating so expressly.
“It follows therefore, that the complementary mechanism in section 44(a) need not be similar, same, akin or parallel to the one set out in section 44 of the Act.
"All that is required is for that mechanism to be simple, accurate, verifiable, secure and transparent and, which allows the citizens to exercise their political rights under Article 38 of the Constitution,” the Court ruled.
But immediately after the decision, Nasa, through lawyer Paul Mwangi, said it will move to the Court of Appeal and was granted the permission to do so.