Last week Kenya’s Senate passed the Election laws (amendment) bill 2016 less than a fortnight after a the National Assembly passed the same amidst protest from the opposition who complained that amending Section 44 of the Elections Act was a recipe by the incumbent government to prepare to rig the next elections. According the Constitution of Kenya the 2017 general elections shall be held on the second Tuesday of the 8th month. That means on the 8th of August 2017 Kenyans will go to the polls. The Act was amended to allow the Independent Electoral and Boundaries Commission (IEBC) to come up with a different system of identifying voters and transmitting results that will be complementary to the electoral system. The amendments were assented to by the President and read, ”Nothwithstanding the provisions of Section 44 the commission shall putt in place a complimentary mechanism for identification and transmitting of results that is simple, accurate, verifiable, secure, accountable and transparent to ensure it complies with the provisions of Article 38 of the Constitution.” The word complimentary has almost caused a war of sorts because its meaning is not specific enough thus leaving it ambiguous. Those opposed to the amendments say it insinuates that IEBC will have to use a manual system to identify voters and transmit results and therefore taking us back to the old system which many claim promotes and makes it easy to rig an election. Those for it said that the right to vote should not be infringed upon just because the electronic system has failed. The proponents cried out loud that technology is bound to fail and if it fails there is need to protect that right by having a manual system as a back-up.
Is there an electronic voting system in Kenya?
What has clouded the debate in the last few weeks is that many people have been misled that Kenya has an electronic voting system. The AG Githu Muigai was one who noted this when facing the Senate Legal Affairs Committee during the public hearing on contentious amendment of the election laws. Kenya has a manual voting system that is supported by an electronic system, the reverse is far from the truth and the civil society and the media should take the responsibility in making this as clear as possible.
What we have in Kenya is an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results. The voting is thus done manually after being identified by your biometrics i.e. fingerprint as an eligible voter one is expected to cast his vote by ticking his choices on the ballot paper and placing it in a transparent ballot box. The results are later transmitted electronically. The law post-amendments is that if the electronic voter identification and transmission fails the commission may use a complimentary system i.e. a manual system-which includes identifying the voter using a backup manual register. The complimentary system can also be used if the voter’s biometrics cannot be identified or if it fails like it did in the last general elections in 2013 where most BVR kits failed to work on Election Day. In Nigeria’s elections in 2015 where the then President Goodluck Jonathan could not be identified by three voter card readers at the Otazi playground polling station, 50 minutes later he was allowed to vote after manual accreditation. In Ghana’s election in 2012, biometrics kits failed and voting had to be extended to the second day. Meanwhile the amendments of the election laws have been challenged in Court and we wait to hear the wisdom of the learned judge.
Direct Recording Electronic voting machine (DRE)
Electronic voting is used to describe an act of voting using electronic systems to cast and count votes. Developed nations especially have automated elections, and this means that people can trust the results because it allows for a process that is auditable.
There are various electronic voting technologies including Optical scan voting technology and Direct-Recording Electronic voting machine (DRE). DRE is the most recent and has been used in countries like Brazil, India, Philippines, and Venezuela and even in the US at a certain percentage. In DRE there is no ballot; the choices are visible on the screen of the machine and the voter directly enters his or her choice into an electronic storage with the use of a touch-screen or push-buttons. An alphabetical keyboard is often provided with the entry device to allow for the possibility of write-in votes. The voter’s choices are stored in the memory devices in these machines.
Electronic voting has had it challenges in many countries. Ireland whose Prime minister pushed for dispensing with “stupid old pencils,” voting as he put it to embrace the electronic system was left with an egg in the face just 3 years and 51 million Euros later. The project was too expensive and people didn’t like it as it looked like their votes were recorded as mere electronic blips as opposed to being tangible. On 3rd March 2009 the German Federal Constitutional Court decided that electronic voting was unconstitutional.THR court ruled that the use of electronic machines contradicts the public nature of elections. The e-voting was challenged by political scientist Joachim Wesner and his son, physicist Ulrich Wiesner who complained that the system was not transparent because the voter couldn’t tell what happened to his vote. The machines used did not print out receipts hence the results could be manipulated. Those critical of the e-voting say that computers can have bugs and thus leave electronic voting vulnerable to hacking and manipulation of results. Some operating systems used are also insecure and the software used is never opened to public scrutiny. Corruption is also a major problem as was in Venezuela in 2004 after Hugo Chavez won the elections, it came out that the government owned 28% of Bizta, the company that manufactured the machines.
Back to Kenya, that there is an electronic voting system in Kenya is a myth.
Happy New Year 2017 as we wait for the second Tuesday of the 8th month to make a decision in peace.
BY FELIX OMBURA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 1, Issue 2 of 13th January 2017
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