On election amendment laws, here are the burning questions, answered
DAILY NATION By JOHN WALUBENGO
Tuesday January 10, 2017
The debate on whether to use manual systems or electronic ones in the forthcoming election has generated more heat than light.
It’s a reflection of the Kenyan problem, where we like jumping into debates without taking time to understand the problem.
Perhaps it would be useful to interrogate commonly held positions through a Frequently Asked Question (FAQ) format.
What is the genesis of the debate?
The debate actually goes as far back as 2007, when the disputed election created many solutions, among them those recommended by the Kriegler and Waki Commissions. These commissions reviewed many matters behind the violence.
One of the recommendations included the use of an electronic electoral system to make the election results more credible. Following these recommendations, the IEBC invested in electronic equipment and systems in the lead-up to the 2013 elections that were deployed but failed miserably on Election Day.
A subsequent IEBC post-election audit report identified, among other things, the importance of ensuring electronic components performed better. Some of these mechanisms found their way into the new election law, the Election Laws (Amendment) Act 2016.
Specifically, this law had made the use of technology mandatory, as opposed to the 2013 polls, when it was optional. Specifically, section 44 was amended to read in part:
44. (1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
With this clause, the IEBC was forced to adopt the use of at least three specific electronic systems: Biometric Voter Registration, Electronic Voter Identification and the Results Transmission System.
How did the current contention arise?
Barely six weeks after the President had signed into law the use of electronic systems in the electoral process, the Jubilee wing of Parliament introduced a new amendment that sought to allow for a complimentary system — apparently in the event of electronic system failure. Specifically, Section 14(b), in the proposed amendment reads in part:
Notwithstanding the provisions of sections 39 and 44, the (electoral) commission shall put in place a complementary mechanism for identification and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with Article 38 (2) and (3) of the Constitution
This new amendment sought to protect the citizens' right to vote — in the event that the electronic system fails — by allowing the IEBC to use a "complimentary system".
Is the complimentary system manual or digital?
The key word "notwithstanding" used in the new contentious amendment seems to disregard the clause that made electronic systems mandatory for voter identification and results transmission. It therefore implies and makes provision for the IEBC to reintroduce a manual system as the "complimentary" system for identifying voters and transmitting results.
Can a manual printout of the digital voter register as retrieved from the BVR be used to identify voters during voting?
This sounds like a good alternative for a failed electronic identification system. However, the printout reintroduces the most vulnerable process, that of manually crossing out voters as they vote.
After polls close, the printout has a list of those who failed to vote for various reasons. That list of absentee voters can simply be crossed out and ballots ticked accordingly. In other words, the digital printout does not cure the ghost voter problem.
More specifically, one must realise that the Electronic Voter Identifier (EVID) kit is more than a kit for validating voters. Its more powerful — and less talked about — features include the ability to keep a tally of who actually showed up and at what time they voted.
After polls close, the digital tally will be compared with the total votes cast and any discrepancy would point to ghost voters.
What then is the way forward?
Whereas it is imperative to ensure all valid voters can vote, it is also imperative to ensure all invalid or ghost voters do not turn up to vote. We should avoid emphasising the right to vote at the expense of the right to have a credible election.
Perhaps we should invest in digital backups as the first and preferred fall-back position for any failure in the electronic systems.
Smart cards issued to voters during registration could be used to identify and log in the voter, in the event their fingers or face are missing for one reason or the other.
In the event that these digital backup systems also fail, then conditional manual interventions may be considered. However, these manual interventions must be able to demonstrate that they eliminate the ghost voter problem.
Finally, such conditional interventions did not require that we reverse a whole Clause 44, which had anchored electronic systems into our electoral process.
Such interventions can be adequately accommodated in the technology regulations of the IEBC, as anticipated in the 2016 Elections Law.