What of the right to access information? What is the law governing the said right?
54.The right of access to information is provided for in various legal instruments as hereunder:Article 35 of the Constitution provides that:1.Every citizen has the right of access to??a.Information held by the State; andb.Information held by another person and required for the exercise or protection of any right or fundamental freedom.2.Every person has the right to the correction or deletion of untrue or misleading information that affects the person.3.The State shall publish and publicise any important information affecting the nation.
56.The Access to Information Act, also defines the term ‘information’ to include all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production.
59.Applying law and the principles relating to scrutiny as well as and the law on access to information to the present application, there is no doubt that the petitioners have signalled their intention to seek scrutiny and we have in that regard set out the specific parts of the Petition in which the issue of scrutiny has been pleaded as well as the kind of information they intend to access. They have also set out the parameters of the intended scrutiny in the petition namely, all rejected votes and spoilt votes, the returns of the Presidential Election including but not limited to Forms 34A, 34B and 34C, and the KIEMS Kit, the server(s) and website/portal.
60.At the hearing of the application, a question was posed by the court as to the efficacy of a scrutiny of all the documents and equipment listed in the application taking into account the timelines for determining a Presidential Election dispute. It was the petitioners’ counsel’s position that the whole exercise involving both access to the Forms and technology should not take more than a few hours. Counsel for the 1st respondent on the other hand stated that the access to Forms 34A and 34B may be granted and a report generated by the Registrar of this court within a day. Indeed, it was counsel’s position that the 1st respondent would avail all the original Forms 34A and Form 34B, as requested by the petitioners, as long as the exercise that would ensue thereafter would be supervised by the court.
61.Counsel for the 2nd respondent on his part stated that some of the prayers sought by the petitioners would be impossible to implement. As a way of example, he stated that the KIEMS devices that were being sought, are kept in the respective constituencies and hence it would be impracticable to retrieve them within a short time for purposes of access by the petitioners. Furthermore, counsel also urged that if the court were to allow the petitioners or any other person access to the KIEMS system as pleaded, the Commission would require to put in place a back-up system in order to safeguard the information stored therein, which system would take very long to set up. In addition, the Commission would also need to test the forensic tools that are to be used by the Petitioners in order to ensure that they are compatible with the system. We also note that counsel for the 1st, 2nd and 3rd respondents cautioned that any meaningful access to the software would take at the very least 3 weeks.
62.Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by counsel for the 3rd respondent, a party must be bound by its pleadings and secondly, any scrutiny of either the Forms or the technology must be made for a sufficient reason. Any prayer in the application that would seem to be an expansion of the case for the Petitioners or which would in effect be a fishing exercise to procure fresh evidence not already contained in the petition would and must be rejected.
63.In the above regard, and noting the submissions by counsel for the 1st respondent regarding access to Forms 34A and 34B prayers 5 and 6 of the application read as follows:
64.In submissions before us, Mr Muite, learned Senior Counsel on behalf of the 1st respondent, stated that his client had no objection to access being granted in the above terms and in such other terms as the court may determine. Counsel for the petitioners did not address this apparent concession but counsel for the 3rd respondent partly addressed the issue and conceded to a limited and programmed access to information contained in Forms 34A and 34B.
65.On our part, we see no reason to deny the said prayers more so when the 1st respondent has assured the court that any report on the access to and scrutiny of the Forms 34A and 34B would be filed in court within 48 hours of any such order by this court and we shall therefore make the necessary orders at the end of this ruling.
66.Regarding prayers 3 and 4 of the application, on the technological aspects of the election, noting the limited time that this court has to hear and determine the petition challenging the Presidential Election and noting the need to ensure that only those orders that are practicable, reasonable and helpful in reaching a just and fair determination of the petition should be granted, we shall invoke that criteria in addressing the said prayers. We also particularly note the petitioners’ apprehension that the physical Forms 34A and 34B produced in court by the 1st respondent may not necessarily contain the results that were electronically transmitted and hence the request to access the IEBC’s system in order to confirm the validity of the information contained therein. We further take into account the fact that our electoral system is partly electronic by its nature and hence the role played by technology in this regard cannot be completely ignored. Consequently, we hereby analyze the merit of each of the Petitioners prayers as hereunder.
67.With regard to prayer 3 specifically, some of the actions for which access is sought have the potential of compromising the integrity and security of the 1st Respondent’s electoral technological system and of individuals persons which, if granted, it is likely that the future use of the system may be compromised and therefore it is important to ensure that there is absolute confidentiality of passwords and usernames, locations of servers, identity of password holders, IP addresses and software running applications inter alia.
68.Prayer 3 further seeks access and supply of a large number of software and hardware but in our view, there are possible security and software integrity issues that militate against a blanket grant of all the orders sought therein. Some of the orders sought also go outside the relevance and purview of the petitioners’ case. Consequently, any order granted with respect to this prayer must be practical, timeous and relevant to the issues in contest. We shall at the end of this Ruling therefore grant orders of access and supply of information that meet the above criteria and we are confident that the said information will also assist the court reach a fair decision in the petition and without jeopardizing or compromising any party’s stated position in it.
69.Regarding prayer 3(a), the same is impractical and difficult to grant because Safron Identity and Security, it was submitted by counsel for the 1st and 3rd respondents, is a soft ware company based in France and not being party to these proceedings, to demand that “persons and systems” related to it should be accessed by the Petitioners is impractical and may unnecessarily delay the hearing and determination of the petition.
70.Regarding prayer 7 on the filing of further affidavits arising from the above information being obtained, noting the time left for hearing and determination of the petition (less than 4 days), such an order would only but delay the proceedings and we see prejudice if the respondents would not be able to respond to the issues raised therein. That prayer is therefore disallowed.
71.Having so held, one aspect of the petition and application require addressing at this stage. It has been the petitioners claim in pleadings that during the Presidential Election, Forms 34A were not captured, stored and transmitted in the expected timeframe, a claim partly raised in prayer 3(g) of the application. In that context, we hereby order that the 1st respondent shall supply to the petitioner and 3rd respondent for their scrutiny scanned and transmitted copies of Forms 34A and 34B forthwith.