Electoral commission officials and vendors of electronic systems used in the March 4 General Election may face criminal prosecution after the Supreme Court recommended they be investigated over the failure of the gadgets.
In its full judgment of presidential election petitions released Tuesday the six judges said there were squabbles among Independent Electoral and Boundaries Commission (IEBC) officials over the procurement leading to the failure of the electronic voter identification devices (EVID) and Result Transmission System (RTS).
“We recommend that this matter be entrusted to the relevant State agency for further investigation and possible prosecution of suspects,” the six judges led by Chief Justice Willy Mutunga, the Supreme Court President, said.
Failure of the devices was at the heart of the petitions challenging the election of Uhuru Kenyatta as Kenya’s fourth president filed by Raila Odinga, who emerged second in the election, and Africa Centre for Open Governance (Africog).
The petitioners said the glitches created room for manipulation of results between polling stations and the national tallying centre at the Bomas of Kenya in Nairobi.
Supreme Court judges Mutunga, Smoking Wanjala, Njoki Ndungu, Jackton Ojwang, Mohamed Ibrahim and Philip Tunoi upheld the election of Mr Kenyatta on March 30, paving the way for the swearing in of Mr Kenyatta as President on April 9.
The judges said the electronic system procurement was marked by competing interests some involving impropriety or even criminality.
“Different reasons explain this failure but, by the depositions of Dismus Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process,” said the judges.
The court said enough evidence was produced to show that EVID and RTS stalled and crashed.
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The petitioners argued that the use of electronic systems in the elections was mandatory but the judges dismissed this view.
The judges said elections regulations provided that voting be done by marking the ballot paper, or electronically, which makes the voting system envisioned in Kenya appear to be manual. The Judges further said that results transmitted electronically were only provisional as per the Elections act.
“Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process,” said the judges.
They added that failure of the provisional tallying results cannot be ground enough for the rejections of the outcome.
The judges said they considered all the evidence presented by the petitioners and concluded that the evidence did not warrant nullification of Mr Kenyatta’s victory.
“The evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates,” the judges concluded.
With the recommendation of investigation and prosecution which was bolded on page 113 page of the judgment, the Supreme Court has set the stage for the Director of Public Prosecution and the police department to swing into action.
Mr Ongo’ndi, Head of IT at the electoral agency, had cautioned the electoral commission against buying the EVIDs, saying they required more time and a parallel technology to function optimally.
In an internal memo to Deputy Commission Secretary for support services Wilson Shollei and copied to IEBC CEO James Oswago, Mr Ong’ondi said the kits tender should not be awarded because of the risk that the gadgets.
The contract was awarded to Face Technologies at a cost of Sh1.3 billion, according to Mr Oswago, who said the devices failed because of an operational challenge.
“We have nothing to hide, we are ready for any investigations and the procurement being subjected to public scrutiny,” Mr Oswago said Tuesday.
The poll books were meant to identify a voter before one could cast a ballot. They were also to verify that one was a registered voter and account for all those who voted, eliminating the risk of multiple voting, ghost voters and ballot stuffing.
Mr Oswago said the commission abandoned the transmission software developed by Next Technologies during the referendum and by elections to develop its own for the General Election at a cost of Sh40 million. That would put the blame on the transmission system failure at the door of IEBC’s IT department which is headed by Mr Ong’ondi.
The failed software was developed in partnership with International Foundation for electoral System (IFES), which also bought the servers. The mobile phones were supplied by Safaricom.
The procurement of electronic systems was marked by controversy from the word go leading to the cancellation of the tenders for the Biometric Voter Register (BVR).
Former President Mwai Kibaki and former Prime Minister intervened and the kits were eventually delivered through a Canadian government loan of Sh6 billion.
Lawyers, however, said the recommendation was too wide ranging to tell who would be investigated and the scope of the charges that would be pressed.
“The recommendation is wide and as at now its difficult to tell because the procurement process involved even those from other government offices,” said Kamau Karori, who represented the IEBC chairman in the presidential petition.
The Elections Act sets out offences that can be committed by commission officials including “without reasonable cause does or omits to do anything in breach of his official duty".
Such an offence attracts a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both upon conviction.