In Summary
  • Specifically, it clause kills the need to have electronic results, given that the manual ones are legally authoritative.
  • To bury the ICT agenda for good, the amendments propose total mutilation of Section 44 (use of technology) by deleting subsections 5, 6, 7 & 8.
  • One gets the feeling that these amendments are more geared towards supporting ICT-illiterate lawyers in the next presidential petition.

Much has been said and written about the recently proposed election amendment laws. Those for and against have already done their legal analysis, so we shall only contribute on the technical front.

First, we need to have both the Elections Act and the proposed election amendments at hand. 

From the proposed amendments, the most critical amendment touching on the electronic systems is found in the amendment that would propose section 39, clause 1D of the Elections Act:

Where there is a discrepancy between the electronically transmitted and manually transmitted results, the manually transmitted results will prevail

This clause makes a strong case for manually transmitted results, making them superior to electronic ones. It is not clear what problem this clause cures. 

However, during the presidential petition, lawyers for the Independent Electoral and Boundaries Commission (IEBC) were at pains to differentiate between electronically transmitted results and those results found on the physical Forms 34A and 34B.

Considering that the Maina Kiai case outlawed "provisional" results, the IEBC lawyers decided to baptise the electronic results "statistics", which made the situation worse, since there is no legal provision for "statistical" results.

TOTAL MUTILATION

If this clause aims to cure this problem, it may have done so but created more problems than it had set out to cure. Specifically, it kills the need to have electronic results, given that the manual ones are legally authoritative.

If there is no need for electronic results, then there is really no need for the rest of the electronic ecosystem that is actually designed around delivering electronic results as a check against commonly known fraudulent activities around physical forms. 

As if to confirm this, the next proposed clause 1E of Section 39 states as follows:

Any failure to transmit or publish the election results in an electronic format shall not invalidate the results as announced and declared by the respective presiding and returning officers at the polling station and constituency tallying centre.

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