David Kenani Maraga, Jackton Boma Ojwang, Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin C Wanjala, Susanna Njoki Ndung'u
Raila Amolo Odinga & Stephen Kalonzo Musyoka v Independent Electoral and Boundaries Commission, Chairperson Independent Electoral and Boundaries Commission & Uhuru Muigai Kenyatta
Raila Amolo Odinga & Another V Independent Electoral And Boundaries Commission & 2 Others  eKLR
Considerations to be made when Parties to a Petition are entitled to Scrutiny and Access to Electoral Systems
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
Presidential Petition No. 1 Of 2017
The Supreme Court of Kenya at Nairobi
(Maraga, CJ & P, Mwilu, DCJ & V-P, Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ)
August 28, 2017
Reported by Robai Nasike and Priscilla Mtawe
Election law- election petition-scrutiny and recount of votes–where the petitioner applied for scrutiny of votes of the presidential results- whether the Supreme Court could order scrutiny of votes and other election materials- considerations to be made when parties to a petition are entitled to scrutiny and access to electoral Systems - Elections Act 2011 sections 80 (3) and 82; Elections (Parliamentary and County Elections) Petition Rules 2013 rules 14 and 33.
Election Law – scrutiny of votes – orders for scrutiny of votes on application by any party to the petition – Petitioners’ allegation of election malpractices and irregularities – whether the 1st Respondent had conducted the election in an impartial, neutral, efficient, accurate and accountable manner- Section 82(1) of the Elections Act (Act. No 24 of 2011) and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013
Constitutional Law – fundamental rights and freedoms – right to access to information – duty of public entities to provide information to citizens - whether a public entity had a constitutional obligation under the Constitution to provide information to citizens – whether the Petitioners were entitled to access information relating to the hardware and software used in the conduct of the 2017 Presidential Election –- Constitution of Kenya, 2010, article 10(2), article 35
The Petitioners’ contented that the Elections Technology System was penetrated and deliberately compromised and used in a manner not intended by law so as to interfere with and affect the result of the 2017 Presidential Election.
In that regard, they asserted that the IEBC electoral system was designed in a manner to ensure that text results could not be transmitted without images on the prescribed form embodying the totality of election results in every polling station. The end result was that the evidence adduced, points to indicators of interference with the systems, fraud in the filing of Forms 34A, 34B and 34C and the systems were not secured as required by law. They further claimed that the said system was breached and deliberately compromised and used in a manner not intended in law.
They therefore sought access and scrutiny of the IEBC System and logs and argued that the Presidential Election Results were made in absolute breach of/and non-compliance with the mandatory provisions of Sections 39(1C) and 44 of the Elections Act as well as the Elections (Technology) Regulations, 2017.
i. Whether an election Court could, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out.
ii. What considerations would be made when parties to a petition were entitled to scrutiny and access to electoral systems?
iii. To what extent were the Petitioners entitled to access information relating to the hardware and software used in the conduct of the 2017 Presidential Election and particularly in transmission of results?
iv. Whether the Petitioners were entitled to leave to file further affidavits after being granted access to the electoral system.
Relevant provisions of the law
“Scrutiny of votes.”
1. An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.
2. Where the votes at the trial of an election petition are scrutinized, only the following votes shall be struck off—
(a) the vote of a person whose name was not on the register or list of voters assigned to the polling station at which the vote was recorded or who had not been authorised to vote at that station;
(b) the vote of a person whose vote was procured by bribery, treating or undue influence;
(c) the vote of a person who committed or procured the commission of personation at the election;
(d) the vote of a person proved to have voted in more than one constituency;
(e) the vote of a person, who by reason of conviction for an election offence or by reason of the report of the election court, was disqualified from voting at the election; or
(f) the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were notorious.
The vote of a voter shall not, except in the case specified in subsection (1)(e), be struck off under subsection (1) by reason only of the voter not having been or not being qualified to have the voter’s name entered on the register of voters.”
Elections (Parliamentary and County Elections) Petition Rules, 2013.
“Scrutiny of votes.
(1) The parties to the proceedings may, at any stage, apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.
(2) Upon an application under sub-rule (1), the court may, if it is satisfied that there is sufficient reason, order for a scrutiny or recount of the votes.
(3) The scrutiny or recount of ballots shall be carried out under the direct supervision of the Registrar and shall be subject to directions as the court may give.
(4) Scrutiny shall be confined to the polling stations in which the results are disputed and shall be limited to the examination of—
(a) the written statements made by the presiding officers under the provisions of the Act;
(b) the copy of the register used during the elections;
(c) the copies of the results of each polling station in which the results of the election are in dispute;
(d) the written complaints of the candidates and their representatives;
(e) the packets of spoilt papers;
(f) the marked copy register;
(g) the packets of counterfoils of used ballot papers;
(h) the packets of counted ballot papers;
(i) the packets of rejected ballot papers; and
(j) the statements showing the number of rejected ballot papers.”
Access to Information Act, 2016 (No. 31 of 2016)
(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—
(a) the State; and
(b) another person and where that information is required for the exercise or protection of any right or fundamental freedom.
(2) Subject to this Act, every citizen's right to access information is not affected by—
(a) any reason the person gives for seeking access; or
(b) the public entity's belief as to what are the person's reasons for seeking access.
(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.”
Independent Elections and Boundaries Commission Act, 2011 (No. 9 of 2011)
(1) The Commission shall publish and publicize all important information within its mandate affecting the nation.
(2) A request for information in the public interest by a citizen
(a) Shall be addressed to the Secretary or such other person as the Commission may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Commission incurs an expense in providing the information; and
(b) May be subject to confidentiality requirements of the Commission.
(3) Subject to Article 35 of the Constitution, the Commission may decline to give information to an applicant where;
(a) The request is unreasonable in the circumstances;
(b) The information requested is at deliberative stage by the Commission;
(c) Failure or payment of the prescribed fee; or
(d) The applicant fails to satisfy any confidentiality requirements by the Commission.
(4)The right of access to information under Article 35 of the Constitution shall be limited to the nature and extent specified under this section.
1. An election Court could, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election Court would determine in accordance to Section 82 of Elections Act.
2. There was no reason to deny the prayers for scrutiny of all the documents and equipment; especially when the 1st Respondent had assured the Court that any report on the access to and scrutiny of the Forms 34A and 34B would be filed within 48 hours of any such order by the Court.
3. On the technological aspects of the election, the criteria for considering that aspect would be the limited time the Court had to hear and determine the petition challenging the Presidential Election and the need to ensure that only those orders that were practicable, reasonable and helpful in reaching a just and fair determination of the petition were granted.
4. With regard to the direct and unfettered access to all persons and the electoral technological system; some of the actions for which access was sought had the potential of compromising the integrity and security of the 1st Respondent’s electoral technological system and of individual persons. If granted, it was likely that the future use of the system would be compromised. Therefore, it was important to ensure that there was absolute confidentiality of passwords and usernames, locations of servers, identity of password holders, IP addresses and software running applications inter alia.
5. The access and supply of a large number of software and hardware could occasion possible security and software integrity issues that could militate against a blanket grant of all the orders sought therein. Some of the orders sought also went outside the relevance and purview of the Petitioners’ case. Consequently, any order granted with respect to that prayer had to be practical, timeous and relevant to the issues in contest. Hence, orders of access and supply of information that met the above criteria would be granted at the end of the ruling. The said information would also assist the court reach a fair decision in the petition and without jeopardizing or compromising any party’s stated position in it.
6. Prayers for the direct, unfettered access to relevant persons and systems at Safran in order for the forensic information technology experts to fully understand the KIEMS system (Kenya Integrated Election Management System) was impractical and difficult to grant because Safran Identity and Security (a French multinational company, specialized in security and identity solutions) was a software company based in France and was not party to the proceedings. To demand that “persons and systems” related to it should be accessed by the Petitioners was impractical and would unnecessarily delay the hearing and determination of the petition.
7. The prayer for filing of further affidavits arising from the information requested being obtained, noting the time left for hearing and determination of the petition (less than 4 days), could not be allowed as such an order would only delay the proceedings and cause prejudice if the Respondents were unable to respond to the issues raised therein.
8. The 1st Respondent was under an obligation to supply to the Petitioner and 3rd Respondent for their scrutiny, scanned and transmitted copies of Forms 34A and 34B.
Application partly allowed.
i. Petitioners as well as the 3rd Respondent acquired a read only access, that included copying (if necessary) of –
a) Information relating to the number of servers in the exclusive possession of the 1st Respondent.
b) Firewalls without disclosure of the software version.
c) Operating systems without releasing the software version.
d) Password policy.
e) Password matrix.
f) System user types and levels of access.
g) The IEBC Election Technology System Redundancy Plan comprising of its business continuity plan and disaster recovery plan.
h) Certified copies of certificates of Penetration Tests conducted on the IEBC Election Technology System prior to and during the 2017 General and Presidential Election including:
i. Certified copies of all reports prepared pursuant to Regulation 10 of the Elections (Technology) Regulations , 2017; and
ii. Certified copies of certificate(s) by a professional(s) prepared pursuant to Regulation 10(2) of the Elections (Technology) Regulations, 2017
i. Specific GPRS location of each KIEMS Kit used during the Presidential Election for the period between and including 5th August, 2017 and 11th August, 2017.
j) (j) Certified list of all KIEMS Kits procured but not used and/or deployed during the Election;
k) (k) Polling station allocation for each KIEMS Kit used during the Presidential Election;
l) (l) Technical Partnership Agreement(s) for the IEBC Election Technology System including but not limited to:
i. List of the technical partners;
ii. Kind of access they had; and
iii. List of APIs for exchange of data with the partners
m) Log in trail of users and equipment into the IEBC Servers.
n) Log in trails of users and equipment into the KIEMS Database Management Systems.
o) Administrative access log into the IEBC public portal
p) The information listed in (m), (n) and (o) above shall be issued in soft copy to the Petitioners and 3rd Respondent.
q) Certified photocopies of the original Forms 34A’s 34B’s and 34C’s prepared at and obtained from the polling stations by Presiding Officers and used to generate the final tally of the Presidential election, and pursuant to such production leave be granted for the use of an aid or reading device to assist in distinguishing the fake forms from the genuine ones.
r) Forms 34A 34B and 34 C from all 40,800 polling stations.
s)Scanned and transmitted copies of all Forms 34A and 34B.
ii. The Registrar of the Supreme Caurt was to be assisted by a number of judicial officers and staff as she demermined and supervise access to the certified copies of original Forms 34A and Forms 34B by the Petitioners and 3rd Respondents at such a venue that she determined in consultation with the parties. A report on that exercise and related issues was to be filed by the Registrar August 29, 2017 at 5:00p.m. The parties were at liberty to submit on the report at the end of the hearing.
iii. In the exercise set out order (i)(a –p)above, priority was to be given to the;
a) 292 Polling stations as deponed to at paragraph 12 of Norman Magaya Affidavit sworn on 23rd of August 2017;
b) 688 polling stations as deponed to at paragraph 15 of Omar Yusuf Mohammed affidavit sworn on 24th August 2017;
c) 14,078 polling stations as deponed at paragraph 70 of Dr. Nyangasi Oduwo’s affidavit dated 18th August 2017
iv. An ICT officer designated by the Supreme Court from among its ICT staff and two independent IT experts appointed by the court was to supervise access to the technology at such a venue as they could determine in consultation with the parties. A report on that exercise and related issues was to be filed by the ICT officer and experts by 5:00 p.m. onAugust 29, 2017. The parties were at liberty to submit on the report at the end of the hearing.
v. The parties to the petition were entitled to have a maximum of two agents/experts in each of the exercises above. The agents were at all times to comply with the directions of the Registrar and the ICT officer to ensure expeditious conclusion of the above exercise.
vi. No order of costs.