Kenya's two houses of Parliament - The Senate and the National Assembly - had special sittings in December dedicated to discussing changes to the Elections Act. The National Assembly sought to introduce amendments to the law that would introduce a 'backup' system to the proposed electronic voter identification devices (EVIDs) that would be used to identify voters at polling stations, as well as the electronic transmission of results from polling stations to constituency and county tallying centers.

Kenya’s Election Act mandates the Independent Electoral and Boundaries Commission (IEBC) "to use such technology as it considers appropriate in the electoral process".

Section 44 of the Elections Act specifies the use of technology in three areas: biometric voter registration, electronic voter identification and results transmission.

The proposed amendments aim to include a complimentary system to the results transmission system. They read in part:

  1. Notwithstanding the provisions of sections 39 and 44, the Commission shall put in place a complementary mechanism for identification and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with Article 38 (2) and (3) of the Constitution.

  2. The Commission shall use the complementary mechanism referred to in sub-section (1) for identification and transmission of election results only where the technology initially deployed fails.

  3. Before using the complementary mechanism referred to in subsection (1) for identification and transmission of election results, the Commission shall notify the public and all candidates and shall immediately cause the notification to be published in the electronic media and in at least two daily newspapers of nationwide circulation detailing the reasons necessitating the use of the alternative mechanism.

The Commission has issued guidelines on the use of technology in elections, covering the use biometric kits to collect voter information that would then be used to identify them at the polling station that they are registered at in order for them to vote. The 2010 Constitution of Kenya states that whatever system the Commission adopts must be simple, accurate, verifiable, secure, accountable and transparent.

The main argument for a backup, as stated by the Government, is to have a system in place in case the electronic systems the IEBC puts in place fail. This has happened in the past, with the 2013 General Election seeing a countrywide failure of the Electronic Voter Identification (EVID) kits, which then led to the use of a backup manual register, a printout of the data contained on the devices, from which voters' names would be crossed out once they had voted.

The Government further added that 78% of Kenya's population living in an area equivalent to 17% of the country is covered by 3G. 2,454 sub-locations have 100 percent coverage; 1,324 sub-locations have up to 90 percent coverage and 2,123 have 0-50 percent. 1,244 sub-locations have no coverage at all.

VSAT and other satellite connectivity solutions can cover the existing gaps necessary to transmit results from the unconnected polling stations to the tallying centres.

The Government position is that the lack of network coverage is likely to disenfranchise voters, which would then necessitate a backup whose nature is as yet unspecified. Going by past elections, this is likely to take the form of a printed out list of voters' names and ID numbers.

However, the justification for this is easily negated by the existence of technologies exist that can be used to expand network coverage to these 'dark spots' that do not have connectivity, a number of which we have covered repeatedly.

Voter data can be hosted locally on election day, removing the need for constant communication with the IEBC server. Once the data they contain has been certified and stored in a static database, the Electronic Voter Identification Devices can operate independently of the main IEBC server, negating the need for a manual register.

Furthermore, it appears the Government's insistence that the IEBC could be hacked by terrorist elements is being used to justify manual transmission of results - where a form filled by a returning officer from a polling station has to be taken to a tallying center for the result to be considered valid. This premise is based on the likelihood that Al-Shabaab and other terror groups could destroy telecommunications infrastructure in parts of North-Eastern Kenya bordering Somalia.

We are at war with al Shabaab who are known to interfere with communication systems. The [ICT] Ministry fully recommends a manual backup system. Joe Mucheru, ICT Cabinet Secretary

However, there is no need for a backup system to transmit election results. Once the results are tallied and announced after certification, they can be sent via secured USSD channels, given that the amount of data required for transmission is small, especially of it is sent in plaintext. That means a 2G network can be used to send preliminary results, not 3G as the ICT Cabinet Secretary Joe Mucheru insisted in his submission to the Senate.

A system was put in place in 2013 where polling clerks were issued with phones to send results from the polling centres once tallying and verification was done. However, this Results Transmission System (RTS) was abandoned following the failure of the biometric voter registration, as systemic errors were discovered in the tallying of spoiled votes.

Essentially, voter registration, identification on election day, and transmission of results are the areas where technology most visibly lends itself to the election process. Data from registration is used to identify voters, who are then given ballot papers, after which the results from the votes they cast are transmitted electronically to the tallying centre. Proponents of a backup system argue that a breakdown in one of these systems will compromise the others, but an even more compelling argument is that these systems should get it right the first time.

What is happening is that a lot of issues are being conflated - arguing that no network coverage means that the devices would not be able to identify voters, and vastly inflating the likelihood of outliers such as people with unreadable fingerprints - in an attempt to codify the likelihood of failure. While having a backup system in place makes sense, it should not preempt the failure of the main system, whether deliberately caused or otherwise.

Cover Image: IEBC voter identification devices in Homa Bay, Kenya.

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