Nairobi — The Independent Electoral and Boundaries Commission (IEBC) on Thursday denied claims of server infiltration by unauthorized person to facilitate variation of election results on electronically-transmitted result forms.
Responding to claims that forms transmitted as JPEG were edited and uploaded on the commission's public portal as PDF documents after being doctored, lawyer Mahat Somane said the argument by the lead petitioner -- Raila Odinga -- was misleading.
He said the Kenya Integrated Election Management System (KIEMS) kits deployed to over 46,000 polling stations had an onboard imaging software that automatically transformed images of forms taken into PDF before transmission to the central server.
"The kit takes an image, imbedded in it (the kit) is a scanner so the image is scanned as a PDF. We don't have any other output," Somane told the 7-judge panel of the Supreme Court led by Chief Justice Martha Koome, the court's president.
He praised the security of KIEMS infrastructure describing it as military-grade saying it was designed to operate on a blockchain system making it impenetrable.
"The kit actually tells the Presiding Officer to retake the image if it is not clear, he then presses send and even without network the image cannot be recalled. The (queued) form then hits the portal whenever the kit gains connectivity," Somane said.
"Our system is so good because it is based on blockchain and it gives resources as required based on the number of people accessing the portal," he added.
Somane told the court the server was also equipped with a verification mechanism that ensured the serial numbers of forms from specific polling stations are valid before they are admitted into the portal.
"Those forms answer some jurisdiction questions before they are admitted into the portal. The portal verifies the polling station code as well as the serial number of the kit deployed to the specific polling station," Somane clarified.
He dismissed forms provided by the petitioners as doctored and "forgeries and bad forgeries at that."
IEBC noted that forms admitted into the portal were assigned two security features namely: a date and a time stamp.
The electoral commission also challenged an assertion by petitioners contesting the outcome of the August 9 presidential election on grounds that the result was not validated by the plenary.
Prof Githu Muigai, former Attorney General, who led IEBC legal team in making oral submission before the Supreme Court defended the commission Chairperson Wafula Chebukati from claims of running a one-man show and side-lining four commissioners.
"The suggestion that we should have a plenary conversation about the result is what that would cause huge ramifications to this country," Senior Counsel Kamau Karori told the court.
"What would happen if after the elections are conducted and completed, commissioners for whatever reason take different positions and decide that they're not agreed on the declaration to be made and that a declaration cannot be made until they're all agreed?" he posed.
Karori also challenged the notion that the implied meaning of IEBC, in running an election, as an institution is the 7-member plenary consisting the Chairperson and six other commissioners, excluding secretariat staff.
He affirmed that Article 138 (10) was specific on who bared the role of declaring the presidential election result and that in doing so, the Chairperson would work with staff of the commission and not commissioners exclusively.
"If that is what was intended by the Constitution, nothing would have been easier for Article 138 (10) to have made reference to members of the Commission," Karori stated.
Article 138 (10) required that: "Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall- (a) declare the result of the election; and (b) deliver a written notification of the result to the Chief Justice and the incumbent President."
Karori went on to say that had the law required the declaration to be backed by a plenary resolution, Article 138 (10) would have been clear on the same.
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"It is deliberate that it only required the Chairperson to declare the results and in my humble submission, is that the protection intended by Article 138 (10) worked in these circumstances," Karori stated.
"We got a declaration made because it is the obligation of the Chairperson to make the declaration and anybody unhappy the option available is for them to come the court. It cannot be that a number of commissioners can decide to walk out so that a declaration does not take place," he told the court.
The Supreme Court is expected to make a declaration on Monday either upholding or invalidation the declaration of Odinga's main challenger William Ruto as President-Elect when the 14-day timeline assigned to the court lapses.
On Wednesday Justices Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko on Wednesday raised a number of points for clarification from submissions by the petitioners ahead of a weekend retreat to write a judgement.
