Never ending wars on election technology

From 2013 to 2022, Kenya’s Presidential election have centered on the integrity of technology, tallying discrepancies, and compliance of electoral laws and the next year’s general election will follow suit if claims by Former Deputy President Rigathi Gachagua is anything to go by.

Gachagua on Wednesday accused the Independent Electoral and Boundaries Commission (IEBC) of quietly laying the groundwork for a rigged election through a digital system allegedly tailored for a South Korean firm Miru Systems.

Just like in the Presidential petition of 2013, 2017 and 2022, Gachagua alleged that mandatory technical specifications have been "specially crafted around the profile of Miru Systems" rather than being vendor-neutral and performance-based.

In the 2013 Presidential petition, the late ODM leader Raila Odinga cited technology failures, claiming the election was marred by the breakdown of the Biometric Voter Registration (BVR) and the Electronic Results Transmission System (ERTS), forcing a reversion to manual tallying.

He also told the Supreme Court that the core issue was the failure of the IEBC to secure and verify the electronic transmission of results, with many statutory Forms 34A and 34B lacking security features, serial numbers, or stamps.

In the 2017 general election, technology was also at the center of the Presidential petition with Raila claiming the  Presidential results were computer-generated, describing the winners Former President Uhuru Kenyatta and President William Ruto then Deputy as vifaranga vya computer.

He claimed the win had been manipulated and mathematically fabricated by a computer algorithm rather than legitimate votes from citizens, claiming Uhuru’s lead remained at a suspiciously constant 11% margin without fluctuating.

He alleged that an algorithm was injected into the IEBC system to artificially generate a fixed gap between the candidates, a move he claimed gave Uhuru’s decisive win of 54 per cent.

In the most consequential Supreme Court decision, the court annulled the election and ordered a recount of 22 polling stations a move that informed Raila to demand for electoral reforms such as the replacement of suppliers of equipment used to transmit election results and the replacement of electoral officials the opposition claimed were complicit in electoral fraud.

In 2022, Raila challenged Ruto’s win alleging server interference over claims that there was unauthorized access that were either “staged" or delayed the transmission of Forms 34A on the public portal.

Although the Supreme Court unanimously dismissed the petition, ruling that there was no credible evidence of system hacking or infiltration, and affirmed William Ruto's election as valid Raila demanded reforms, including the opening of the IEBC servers which was popularly known as ‘fungua server’.

With the controversies surrounding the procurement of the election technologies ahead of next year’s general election and the IEBC admission that its tender for a new elections management system contains an error, and that it had mistakenly required bidders to provide performance security equivalent to 20 per cent of the contract price, pundits believe use of technologies to deliver a free and fair election is yet to deliver its mandate.

Further, the choice of the technology provider has also divided the Opposition who have differed on whether to maintain Smartmatic, that provided the Kenya Integrated Election Management System (KIEMS) kits for the disputed 2022 election or to procure a new provider.

While Kalonzo Musyoka (Wiper Patriotic Front) and Justin Muturi (Democratic Party) are opposed to Smartmatic because they believe the technology firm's global controversies and past performance compromise the credibility of the upcoming 2027 General Election, Gachagua wants the firm retained.

According to Kalonzo and Muturi, Smartmatic firm’s allegations on corruption tied to past elections in the Philippines that led to the filing of foreign bribery charges by the U.S Department of Justice should be the basis to deny the firm the contract.

They have also cited the firm’s association with the 2022 election dispute where they maintain that the KIEMS kits were flawed.

The leaders claimed the technology firm officials held alleged secret meetings in Nairobi, raising more questions on the credibility of the 2027 general election.

'The relationship between Smartmatic and IEBC deepens public mistrust and feeds a perception that the electoral body leans toward the government.,” Muturi said.

However, Gachagua, who also supported his Opposition counterparts, changed tune and recommended retaining the current Smartmatic election technology ahead of the 2027 General Election.

Gachagua stated that there is insufficient time before the 2027 polls to introduce, migrate data to, and test a new integrated election management system.

He argued that the existing Smartmatic infrastructure already holds critical voter data and possesses established operational experience in Kenya.

 “The elections are here. There is no time to tamper with it. I want to recommend that the current system of Smartmatic be retained, because they already have the data, they have the experience, and we have seen them do elections,” Gachagua said.

He cited Malawi, where he said he had observed the system being used.

He said introducing a new company within the remaining period before the election would require existing data to be transferred, raising concerns about the process.

 “But it is not possible to have a new system to manage our elections between now and the election, 11 months. Why do we have to remove, to get data from a company that is already in the country and give it to a new entrant? What is the gain?” he asked.

Gachagua said the current provider had already done significant groundwork and had access to the voters’ register.

 “They have already done the donkey work. They have all the data. They have the voters’ register. Why do you want to move that data to a new company?” he said.

As the controversy on which technology provider will be used in next year’s election, Smartmatic firm is embroiled in a legal dispute with the IEBC over an unpaid debt of close to Sh570 million from a 2021 election technology contract.

 Smartmatic claims the IEBC paid parts of the contract in Kenyan shillings instead of the agreed US dollars.

An arbitrator previously ruled that the electoral commission breached the agreement with the firm, maintaining that failure by the commission to appeal or challenge the final amount proved that they had no case.

Digital expert Njoroge Gikurumi predicted that even after the next year’s general election, the issue of technology will play a major role in the Presidential petition with either side of the government or the Opposition using it tochallege the outcome of the results.

 “If for example, Miru Systems is awarded the contract, it will lay grounds of the petition by the Opposition; likewise, if the electoral commission retains the Smartmatic, the government may use Gachagua’s remarks where he recommended the Smartmatic to challenge the outcome,” Gikurumi added.

He said the country would continue experiencing legal battles pertaining to the election technology providers until such a time when Parliament will come up with a bill that will give public access to election data, stronger security checks, and better voter education.

 “IEBC should provide access to the results transmission portal by disclosing and publicizing the URL for the portal to the public as well as granting observers access to back-room server operations on the processing of results forms,” he said.

Kenya ICT Action Network (KICTANET), an election technology observers mission, in its Pre-Election Observations Report on Kenya’s August 2022 Elections recommended that IEBC should transmit and display both text results entered in the KIEMS and the scanned result forms transmitted for all the elective positions across all polling stations to enhance transparency, accountability and verifiability of the elections.

“IEBC should ensure all technologies and devices to be used in the elections are all tested before deployment to ensure sufficient performance, as well as incorporate cyber hygiene, digital security and privacy aspects in the curriculum used for the training of election officials,” the report reads in part.