The Supreme Court has recommended that access to servers supporting the transmission and storage of election results should be restricted to the Independent Electoral and Boundaries Commission (IEBC) staff during the poll period.
The top court, in the full version of their judgment that upheld the election of William Ruto as President released on Monday, said non-IEBC staff should be denied access to avoid suspicion.
During the hearing of the cases filed to challenge the election of Dr Ruto, claims were rife that unauthorised persons accessed the servers, compromising the election results.
“To avoid suspicion from stakeholders, unless where and when it is absolutely necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C should be restricted to IEBC staff during the election period,” the judges, led by Chief Justice Martha Koome, said.
Opposition leader Raila Odinga, who lost in the tight vote, alleged that a team working for Dr Ruto hacked into the election system and replaced genuine pictures of polling station result forms with fake ones, thus increasing the latter’s vote count. Dr Ruto denied the allegations.
IEBC commissioner Justus Nyang’aya, who was also a respondent in the case, said unauthorised persons, including one identified as Gudino Omor and 377 others, accessed the IEBC’s server and manipulated results from the Forms 34A uploaded from the polling stations.
Mr Nyang’aya also claimed that Mr Omor was able to upload fresh results.
The court, however, dismissed the claims saying a review of the servers failed to detect suspicious activities.
It also recommended that the IEBC should ensure the servers supporting the elections and those hosting their internal administrative work are distinct and separate.
“This would then allow the court, should the need arise, to carry out forensic imaging of the same without compromising or infringing any third-party agreements,” the court said.
The supplier of voting technology to the IEBC had opposed the opening of the national tallying centre (NTC) servers for scrutiny, citing security issues.
The IEBC contracted Smartmatic International Holding B.V to supply, test and maintain software, hardware and accessories for the election.
The firm said providing full access to servers hosting Form 34C would infringe its intellectual property rights.
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The Supreme Court judges unanimously upheld the election of Dr Ruto as President, rejecting several petitions, including one lodged by Mr Odinga and his running mate, Martha Karua, to have the result overturned.
The seven-member court said Mr Odinga’s alliance failed to prove claims that the polls had been rigged.
Dr Ruto was sworn in as Kenya’s fifth president on September 13.
The Supreme Court pointed out that there was institutional dysfunctionality that undermines the optimal functioning of the IEBC and suggested legal, policy and institutional reforms that are urgently required to address the shortcomings.
The court asked Parliament to consider reviewing laws guiding the electoral commission.
The commission, said the judges, should have clear set roles for the chairperson and the commissioners.
“The roles of the chairperson, commissioners, and the chief executive officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts,” the court added.
The court further said the responsibility of tallying and verifying the results of a presidential election at the national tallying centre vests in the electoral body as a collective entity and not the chairperson of the commission.
The Supreme Court, however, clarified that the declaration of the presidential winner vests exclusively in the IEBC chairperson.
The judges said that the law does not give the chairperson of the IEBC, Wafula Chebukati, a veto over the rest of the commissioners.
“In essence, IEBC chairperson’s status in relation to the other commissioners is as a first among equals,” they said.