NASA on Monday pushed for postponement of the General Election should the electronic system fail on polling day August 8.
The alliance told a three-judge bench the electoral agency has failed to put in place a complementary system as required by law.
“They have failed to put in place the complementary system, consult relevant stakeholders or even engage the public to come up with the said system,” NASA lawyer Paul Mwangi said.
But in response to the suit, Jubilee Party says NASA “has become an instrument of voter suppression”.
NASA told the court that should the electronic system fail on August 8, Section 55(b) of the amended Elections Act allows the electoral agency to postpone the election until a complementary system is put in place.
The Act mentions postponement of elections in constituency, county or ward levels, though it is silent on the presidential election.
Mwangi, Siaya Senator James Orengo and Ben Sihanya told justices Francis Kimondo, Hedwig Ongundi and Alfred Mabeya the country cannot go through a compromised election “like in the past”.
The lawyers argued that previous elections, have been compromised by failure of technology and now the IEBC has no substitute after violating the Constitution.
To stop mischief, the lawyers said Parliament mandated the IEBC to come up with a complementary system, but not a manual one.
The opposition wants electronic systems used exclusively to identify voters and transmit results — no manual backup as has been allowed.
NASA said the IEBC is time barred to establish a complementary mechanism for the election as required by law.
However, IEBC lawyers PLO Lumumba, Paul Nyamodi and Edwin Mukele said the necessary legal framework is in place to handle any problems.
The lawyers told the court the agency has already published regulations to handle any shortcomings that may arise during the voting.
Lumumba said NASA leaders had actively participated in the enactment of amendments to the electoral law to provide for the smooth voting, tallying of ballot papers and verification of election results.
“The IEBC had allowed public participation and consulted all stakeholders before Parliament sanctioned the restructuring of the Elections Act,” he said.
The lawyer told the judges the voting process was purely manual and the documents formed the key evidence of the outcome of the
Senior Counsel Ahmednassir Abdullahi and lawyer Tom Macharia, who are representing Jubilee, said failure of the biometric voter registration systems and EVID systems should not be a basis for disenfranchising eligible voters.
“The opposition is trying to legislate its electoral agenda through the court and should not be allowed to do so in view of the doctrine of separation of powers.”
The court was told the least it can do is to provide for a backup manual system in case the electronic system fails, as happened before.
Parliament last year passed amendments to the Elections Act to allow for manual backup of the register, in the event of the failure of
the electronic system.
The opposition opposed the amendment, which was supported by Attorney General Githu Muigai and pushed through by Jubilee MPs.
The opposition said the amendments should be rejected because the electoral laws were a result of a negotiated agreement among other contentious issues and that Jubilee acted in bad faith.
It said using the manual system was a scheme to rig the elections, and it would boycott the elections if the manual system was forced on them.
National Assembly Majority Leader Aden Duale has told the IEBC to come clean and tell Kenyans whether NASA servers are connected to its tallying centre.
Addressing his supporters in Garissa town yesterday, Duale said Kenyans need to be told “who the foreign hackers the opposition has invited are”.
“We don’t want any monkey business on a serious matter such as the election. We want the IEBC to tell the country what they know,”
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