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Kenya has been in campaign mood for the past few months and the controversy surrounding use of technology in the 2017 General Elections in Kenya adds a spanner to the works. In the immediate previous elections, technology was employed in three areas: Biometric Voter Registration (BVR), Electronic Voter Identification (EVID) and Results Transmission System (RTS) where SMS relayed results from polling stations to tallying centres.
The same integrated system will be used in the upcoming polls. The current debate stems from the question whether there should be a complementary system to technology, in case technology fails. This brief explores technology and elections in Kenya starting from a brief history of elections in Kenya, post-election violence reports, the 2013 presidential election petition, current law and a summary of issues in the debate. It concludes by observing that the use of technology is only one among means to guarantee the integrity of elections. Indeed the electoral reform and amendments in question cover more than use of technology, although this brief only address technology and elections.
Kenya has been conducting national elections since 1920 when the Colonial Legislative Council was first elected. The election periods can loosely be classified per the soci0-political issues of the time. In the nine elections between 1920 and 1956, there was clamour for racial representation in government. Universal suffrage finally achieved in 1961 and Kenya gained independence in 1963. Post-independence, governance shifted from decentralised to centralised with a one party state. Elections from 1963 to 1988 had a nexus to executive power.
Kenya reverted to a multi-party state in 1991 and the elections from 1992-2007 reflect the transition to plurality. However, as can be noted from the post-election violence after the 2007 elections, apart from political representation, there were other societal issues manifested in the search for power through elections.
Like many other African states, Kenya has faced various challenges in governance and elections. In August 2010, a new Constitution was promulgated where key changes are an enhanced Bill of Rights and introduction of a devolved system of governance. The 2013 Elections were conducted under this new dispensation and while peaceful, they were disputed. Part of the contention was use of technology in the election. Prior to the 2017 Elections, there were calls for better preparations for elections with one of the issues being use of technology in key processes such as voter identification results transmission.
Following a peace agreement brokered by the African Union after the 2007 post-election violence, two commissions were appointed to investigate the causes of the violence and make recommendations for lasting resolutions. The Waki Report was the product of the Commission of Inquiry into Post-Election Violence (CIPEV). It identifies land, poverty, youth unemployment and negative ethnicity as causes of the violence and among others recommends regulation of freedom of expression through a constitutional provision limiting the liberty when it extends to hate speech.
The Krieglar Report by the Independent Review Commission (IREC) was mandated to investigate all aspects of the 2007 presidential elections and give recommendations on improvement of the process. Some relevant findings of the IREC include: institutional weaknesses such as bureaucratic procedures and lack of adequate training of staff on the election; missing of registered voters from voters register; ballot stuffing; delayed transmission of results ; hate speech and negative propaganda during campaigns; sexist tactics; inadequate voter education on the election process; inadequate information on aspects of the election ; errors in summation of presidential results; delayed announcement of election results and collation of information on elections, including information for post-election dispute resolution.
The report made recommendations in six themes: the constitutional and legal framework on elections; the organisation structure and operation of elections; role of actors in the electoral process; conduct of 2007 elections; vote counting and tallying and post-election procedures. It noted that the electoral management body could have leveraged on ICT to streamline some of its operations and improve efficiency of elections, especially in results processing. For instance, an integrated secure tallying and data transmission system where accredited media had access would have deflated anxiety in waiting for results. The need for adequate verification of provisional results is also discussed.
During the Krieglar Commission sittings, it was heard that the then elections management body – Electoral Commission of Kenya had been receiving technical support from various partners, for example advice on implementation of a system for tallying and transmission of results. Such a system had been successfully deployed during the 2005 Referendum.
There was use of technology in the 2007 Elections but this was uncoordinated and compartmentalised. Other issues flagged by Krieglar were: bureaucratic and uncodified operational procedures, lack of sufficient training of staff and lack of use of technology in processes such as dissemination of information. An interesting question posed by the Report was whether use of technology required legal reform. The Commission was of the view that the electoral management body could have had an ICT policy to guide its operations. After the 2013 elections, Kenya seems to be taking the route of providing a framework with as much certainty as possible and reducing the discretion of the electoral management body.
The 2013 General Election was scheduled to be conducted with three electronic components:-BVR, EVID and RTS. BVR was successfully done where a registration kit comprising of a laptop, fingerprint scanner and camera was used to capture a voter’s facial image and finger prints. The kit linked this data to personally identifiable information such as national identity card number and address.
EVID which is an electronic voter register did not work as expected. There were two types of EVID used-laptops with finger print readers and hand held fingerprint readers. Some of the problems encountered on the election day included devices running out of power and others crashing. Electoral staff were not well prepared for equipment failure.
RTS with which specially configured phones were to relay results to constituency and national tallying centres was discontinued during the tallying process. This was after the SMS system suffered an overload. There was also a bug in the system multiplied the number of rejected votes.
The role of technology in delivering a free and fair election was therefore among the issues in focus when the election became subject of a court petition. One of the questions that came to fore was whether use of electronic facilitation during the election was discretionary or mandatory. The petitioner argued that when the elections management body (IEBC) abandoned the electronic means for the manual one, there was so much disarray that the integrity of the vote could not be guaranteed. Furthermore, there were inaccuracies in vote tallying occasioned by departure from the electronic results transmission system.
While the court found that IEBC had no other option but to revert to a manual system once the electronic system failed, it was also established that the failure came about due to “failure to establish the integrity of the systems in the first place”.
The current laws on election management are as a result of negotiated processes, within and without Parliament. For example, the constitutional guarantee on the right to representation follows the recommendations of the Krielglar Report on the right to vote, non-discrimination and nomination of special interests.
Political rights are provided for in Article 38 of the Constitution. They span from the right to political choices, regular free and fair elections, right to vote and be a candidate. Chapter Seven of the Constitution delineates representation of the people and gives effect to political rights by outlining the principles and processes of elections. Article 86 requires that whatever method is adopted for elections:
a) The voting method is “simple, accurate, verifiable, secure, accountable and transparent”
b) There is promptness in counting, tabulating and announcement of results once votes are cast
c) There is openness and accuracy in collation and announcement of results
d) There are appropriate structures to eliminate electoral malpractice
Technology is therefore a means with which to achieve the objectives set out in Article 86. Another relevant provision is Article 83(3) that requires administrative arrangements for registration of voters be designed so as to facilitate and not deny any citizen their right to vote. For this reason some have argued for use of a manual register in voter identification to cater for those who for physical or environmental reasons may not be identified using the EVID, so as not to deny them their right to vote.
The Elections Act was enacted in 2011. It provided in section 44 that IEBC may
“use such technology as it considers appropriate in the electoral process. “
As previously explained, IEBC employed an integrated elections management system in the 2013 General Election with BVR, EVID and RTS. These processes were provided for under the Elections (General) Regulations, 2012. Under Regulation 61, every polling station was supplied with an electronic register of voters for biometric voter identification. The procedure for electronic voter identification was set out in Regulation 69 (1) (d) while Regulations 82 and 87 required returning officers to transmit results electronically before transmitting them manually.
These procedures did not envisage failure and there were no provisions for backup plans in case of any of the electronic system components did not work as intended. Hence as the Supreme Court observed, the IEBC was left with no option but to revert to the manual system in order to deliver the election.
IEBC Reform Amendments
The 2016 amendments to the Elections Laws were as a result of a political negotiation. The negotiation followed weeks of protest by the Coalition on Reforms and Democracy (CORD) calling for the reform of IEBC before the elections. A select committee comprising of Members of Parliament from the ruling coalition Jubilee as well as CORD agreed on a reform package. Among the items in the negotiated package was the mandatory use of technology in elections.
Section 44 that previously provided for discretionary use of technology by IEBC was amended to read:
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.
The amendment also required that IEBC develop a policy for progressive use of technology during the election, open procurement the necessary technology and consultative development of Regulations for the integrated system. The Regulations cover among others acquisition and disposal, testing, audit, data storage, security, retention and disposal, access to the system source codes, capacity building of staff on the system, telecommunication network for voter validation and results transmission, disaster recovery as well as operations of a technical committee to advise on the system.
The amendments were passed by both Houses of Parliament in September 2016.
Complementary System Amendment
The current contention was born from an amendment to Section 44 introduced by the Leader of Majority in the National Assembly on 22 December 2016. The amendment sought to provide for use of a manual system in both voter identification and results transmission should the electronic system fail.
The amendment reads:
“(1) Notwithstanding the provisions of sections 39 and 44, the 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.
(2) The Commission shall use the complementary mechanism referred to in sub-section (1) for identification and transmission of election results only where the technology initially deployed fails.
(3) Before using the complementary mechanism referred to in subsection (1)for identification and transmission of election results, the Commission shall notify the public and all candidates and shall immediately cause the notification to be published in the electronic media and in at least two daily newspapers of nationwide circulation detailing the reasons necessitating the use of the alternative mechanism.”
The amendment passed in the National Assembly and was forwarded to the Senate where after a period of public participation, the same was passed on 5 January 2017.
Some of the issues raised in this debate include:
a) Intent and Procedure: Outside the substantive debate on the question of whether or not there should be a complementary system in the forthcoming election, people have questioned the manner in which the amendment was introduced. While previous amendments emanated from the negotiated process of the joint select committee, the latest one was introduced when Parliament was on recess. Its passage in the National Assembly was expedited. Some have therefore argued that the language of the amendment is ambiguous and leaves room for interpretation. It may therefore turn out that there was need to have measures in the event of failure of technology but that there is opposition to the process with which the measures are put in place.
b) Biometric Identifiers: During the 2016 amendments, “biometric” was defined as unique identifiers or attributes including fingerprints, hand geometry, earlobe geometry, retina and iris patterns, voice waves, DNA and signatures. There have been arguments that the law could have been crafted to include facial recognition and use of national identification documents in cases where it was not possible to identify a person using biometric data. This would have clarified the question of denying some voters their right to vote where it was agreed that technology was the only means of voter identification.
c) Complementary System?: Those testifying before the Senate have adversarial views on the issue of a complementary system to the electronic system. First, there was the question of what was meant by “complementary” with some taking the view that it meant manual backup and others saying that it could also mean a hybrid or layered backup system. Arguments against a manual backup are based on fear of interference when there is inconsistent use of technology as was the claim in the 2013 Election Petition. Those pro a manual system argue that it is important to have a fall back plan should technology fail. The CS for ICT spoke of vulnerabilities of technology, including attack by terrorists. The Communications Authority presented data to show that only about 17% and 84% of the country was covered by 2g and 3g network respectively. The technology community on the other hand was of the opinion that it is possible to implement an electronic system to meet the needs of securing integrity of the vote and enhancing efficiency of results transmission. It is worth noting that the Kenya Integrated Elections Management System (KIEMS) is still under procurement and that the bid is still open till 9 January 2017.
d) Acceptable Level of Failure: Related to backup argument is the thinking that Kenyans should be focussing on agreeing on acceptable level of failure of technology. This school of thought argues that there is no perfect technology and therefore the political players should be discussing what can be acceptable and in what cases the failure of technology would require special action. Proponents of this notion would therefore call for more clarity in defining failure of technology and more openness in designing the fall back solutions in the event of such failure.
e) Universal Access: The debate about technology and elections in Kenya has brought to the fore the issue of universal access for all. While these discussions have been taking place for years within ICT policy advocacy fora, the public is now questioning the mandate of the Universal Service Fund Board which was established to among others ensure universal access to technology.
f) Public Participation: After the hurried process of passing the legislation at the National Assembly, Kenyans urged the Senate to allow for public participation in the second leg of law making once the law was forwarded to the Senate. Senate allowed for public input and there was a large turnout of people from different backgrounds offering their opinions on the issue. However, as was explained by the Chairperson of the Senate Committee that handled the report on the complementary system amendment, at the end of the day, Senators voted on party lines. This had led some to question the value of public participation when it seems that the views of the public are not taken into consideration in decision making.
The elections calendar continues to roll with the next tech related activities being procurement of KIEMs and the massive voter registration exercise slated to start in mid January.
The rationale behind adoption of technology in elections should serve to remind us that technology is not an end in itself but a means to assure Kenyans to exercise their political rights in freedom. Many put faith in the Constitution as the social agreement that would create the desired environment for good governance and equitable development. Realisation of this goal is a work in progress and it will occur when among other things, we build strong institutions and processes for delivery of services such as elections. One of the main celebrations of the 2013 Election is that dispute arising therefrom was resolved through the Supreme Court. We must protect and advance such gains through having elections preparation processes that are open and inclusive to all affected parties.
 See Chapter 2.6 of the Krieglar Report.
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