MALITI: IEBC only needs to follow Supreme Court’s guide to deliver credible presidential election

PART 1

In preparation for the August 9 election, IEBC officials have been talking to legislators about a problem they face: How to transmit electronically presidential election results from 11,883 polling stations.

The electoral commission officials say the problem is the stations are out of range of any 3G or higher speed network. As the law stands, a presiding officer is required to transmit the presidential election result of their polling station electronically.

The IEBC has set up the Kenya Integrated Election Management System popularly known as Kiems for this purpose. The system requires a 3G or higher speed network.

The polling stations the officials have referred to are also one of the reasons the Supreme Court in a 4-2 judgment annulled the presidential election in 2017.

The majority of the Supreme Court determined that by the time the IEBC declared Uhuru Kenyatta the winner of the August 8, 2017 presidential election, the commission in Nairobi had not received electronically the results from the 11,883 polling stations. By law, the tallied presidential election result was to be announced in Nairobi at IEBC’s designated national tally centre.

In the August 2017 election, there were 40,883 polling stations across the country. The 11,883 polling stations out of 3G network range made up about 29 per cent of the total. 

SAME ALARM, DIFFERENT ELECTION

Just as it is doing now, the IEBC had raised a similar alarm ahead of the August 2017 election.

It said a large number of polling stations were out of 3G network range.

“… two days to the election date, the IEBC announced that it was going to be unable to electronically transmit results from 11,000 polling centres because they were off the range of 3G and 4G network. Consequently, its officers would have to move to spots where they could get network to be able to transmit.

"Come the election date on 8th August, 2017, IEBC claimed it was “unable” to transmit results from those stations,” the Supreme Court said in its majority September 20, 2017 judgment. 

The Supreme Court also said it took judicial notice of a press briefing the commission issued ahead of the 2017 election. 

“The IEBC assured the country that it had carefully considered every conceivable eventuality regarding the issue of the electronic transmission of the presidential election results, and categorically stated that technology was not going to fail them. IEBC indeed affirmed that it had engaged three internet service providers to deal with any network challenges.

"We cannot, therefore, accept the IEBC’s explanation of alleged failure of technology in the transmission of the presidential election results. The so-called failure of transmission was in our view a clear violation of the law,” the judgment said.

Now, electoral officials are arguing that to avoid repeating what happened in 2017, presiding officers should be allowed to deliver paper versions of the results from their polling station to their respective constituency tallying centre in case they cannot transmit the results electronically.

They have said this before the National Assembly, most recently on March 14, when they made making submissions in favour of amending the Elections Act and regulations related to it. 

SUPREME COURT'S WORK-AROUND 

The Supreme Court, however, had a different view on IEBC’s 3G challenges.

The court said there was a work-around the presiding officers could have used in 2017 to transmit the presidential election result electronically.

The court said that in an affidavit submitted to it, the commission's ICT director at the time, James Muhati, said presiding officers of polling stations out of 3G network range had been “instructed to move to points with network coverage or to the constituency tallying centres in order to electronically transmit results.” 

“It is important to note that once the POs (presiding officers), who were off the network range, scanned the results into Forms 34A and typed the text messages of the same into the KIEMS and pressed the “SUBMIT” key, a process IEBC told the country was irreversible, all that remained was for the POs to move to vantage points where 3G or 4G network would be picked and the details could automatically be transmitted in seconds,” the judgment said. 

The Supreme Court said that the 11,883 polling stations out of 3G network range are in 13 counties — Bomet, Bungoma, Busia, Homa Bay, Kajiado, Kericho, Kiambu, Kisumu, Kisii, Kirinyaga, Nyeri, Siaya, and Vihiga.

“It is common knowledge that most parts of those counties have fairly good road network infrastructure. Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the POs to travel to vantage points from where they would electronically transmit the results. That they failed to do that is in our view, an inexcusable contravention of Section 39(1C) of the Elections Act,” the court said.

IEBC'S POST-ELECTION EVALUATION 

After the two presidential elections in 2017, the commission carried out an evaluation of its work.

The undated 259-page report produced from that evaluation is titled The Post Election Evaluation Report.

It does not mention anything the Supreme Court said about the 11,883 polling stations. None of the recommendations in the report propose amending the Elections Act to give presiding officers the option of delivering the paper version of the presidential election result to the constituency tallying centre when the Kiems kits are unable to transmit.

In the report, the number of polling stations out of range of a 3G network is lower than what the IEBC submitted to the Supreme Court and what the commission has been telling MPs in recent weeks. The report also claimed the transmission of results was more successful than what the IEBC submitted to the Supreme Court.

“Prior to the election, the commission together with the mobile network operators had mapped out the country to determine signal strength. However, 3,000 polling stations across the country were identified as not having 3G connectivity necessary for result transmission.

"The POs under these regions were under instruction to move to the tallying centres to transmit results using satellite modems that were available at the tallying centres,” the report said.

“Failure of some polling stations to transmit results raised anxiety among the electorates. The question most people were asking was why the results could not be transmitted, while they could make calls from those locations. This was as a result of lack of understanding that the transmission of result used 3G network as opposed to 2G that is used for voice calling and covers most parts of the country.

"This information was shared with electoral stakeholders. The transmission rate of the presidential results in the 2017 General Election was 92 per cent. This was a significant improvement from 2013 presidential election where the transmission rate was 44.6 per cent,” the report said. 

The Star asked the IEBC to comment on the issue of the 11,883 polling stations and what the Supreme Court judgement had to say. Despite repeated reminders for comment, the commission had not responded by the time this story was published.

Tom Maliti is a journalist who covered the presidential election petitions of 2013 and 2017. 

(Part 2 of this review will be published in the next edition of Siasa on Friday)