The national electoral agency faces another setback after the Opposition coalition the National Super Alliance (Nasa) filed another case seeking to compel it to use only the electronic platform on polls day.
Just 20 days to the polls, Nasa, through lawyer Paul Mwangi wants the courts to get the Independent Electoral and Boundaries Commission (IEBC) to commit that it will postpone the elections if the electronic system fails.
The case is before judges Kanyi Kimondo, Hedwig Ong’udi and Alfred Mabeya.
Section 55(b) of the amended Elections Act allows the IEBC to postpone elections in a county, constituency or ward when electronic system fails until a complimentary system is put in place.
Mr Mwangi together with Mr James Orengo and Prof Ben Sihanya argue that previous elections have been compromised by failure of technology.
“To cure mischief, Parliament mandated IEBC to come up with a complimentary system, but not a manual system.” Mr Mwangi said
“Since the said system is not in place and the IEBC has not consulted the relevant stakeholders, the only option left is to postpone the elections, if the electronic system fails.”
But Jubilee, through lawyer Ahmednasir Abdullahi and Tom Macharia see the suit as a ploy by the Opposition to suppress the wishes of voters.
Mr Macharia said the failure of Biometric voter Registration systems and EVID systems (electronic poll book) should not be a basis of disenfranchising eligible voters.
Mr Macharia said systems have failed even in developed countries, where they have invested billions of shillings in their electoral system.
“In countries like the USA, it didn’t take long for voters to lose trust in the system as they deemed it too complex, unreliable and insecure - the only worse than a confusing paper trail, it turned out was no paper trail at all,” he said.
Mr Abdullahi said the petition by Nasa is meant to declare Section 44(a) of the Elections Act illegal and in effect, legislate through back door.
He said Mr Orengo, who is also the Siaya Senator unsuccessfully tried to block Parliament during the debate to amend the election laws in December.
“After failing to stop the process in December, they have now brought a petition raising the same issues. He cannot be allowed to have a second bite of the cherry,” he said.