- IEBC provided copies that were not certified in accordance with Election Technology regulation 10 of 2017.
- Chief Justice Maraga said an election must be backed up by genuine documents and a system that is transparent.
Failure by the electoral commission to demonstrate that the presidential election was held in a transparent and accountable manner was at the heart of the Supreme Court’s decision to void the results.
The court appears to have taken seriously reports presented to it by two teams of experts it directed to examine Independent Electoral and Boundaries Commission servers and forms 34A, 34B and 34C that were used to declare Uhuru Kenyatta the winner of the August 8 election.
The report on the servers was written by Prof Elijah Omwenga and Prof Joseph Sevilla, IT experts appointed by the court and Ms Janet Kadenyi, an employee of the Judiciary.
The forms scrutiny was supervised by Supreme Court registrar Esther Nyaiyaki.
The court issued a total of 18 orders to the IEBC to open itself to scrutiny.
Of these, six went to the heart of the technology that the commission deployed in the election.
The court wanted its experts and those of the petitioner, Raila Odinga, to access IEBC servers to mine some key information.
IEBC stonewalled and delayed the access for hours and when it allowed it, it was not in the manner the court ordered.
For example, IEBC declined to provide the internal configuration firewall to its server, arguing that it will affect the security of their system.
In their report to the court, the experts disagreed, saying providing the firewall will not affect the integrity of the system.
That IEBC refused to open itself to scrutiny appears to have convinced the judges the commission had something to hide.
The court also wanted certified copies of certificates of penetration tests conducted on the IEBC election technology system.
These are performed to test the integrity of the system and ability to withstand hacking.
IEBC provided copies that were not certified in accordance with Election Technology regulation 10 of 2017.
Again, the experts report indicts the commission and the judges followed suit.
The other order was on log-in trail of users and equipment into the IEBC servers and Kiems database management system.
This could have revealed information on whether there was unauthorised access to the system to change results as claimed by Nasa.
IEBC refused to provide this information.
On the forms scrutiny IEBC provided 41,451 34As, 291 34Bs and one 34C.
The scrutiny showed a number of anomalies that could have helped sway the judges decision.
They included forms that did not have security features, those that were not signed by agents and returning officers or stamped by the IEBC.
An election, Chief Justice David Maraga said, is a process, not an event.
How the winner is declared, from the tallying of the votes to their transmission, matters.
It is not random numbers announced.
They must be backed up by genuine documents and a system that is transparent, accountable and verifiable.
This was simply not the case and with the court’s ruling, Kenya is no longer just another African country where democracy is routinely subverted with impunity.