Is Botswana ready for the use of EVMs?
Staff Writer | Thursday August 31, 2017 16:25
Botswana’s Justice Key Dingake is amongst the five observers of the case who shall make a ruling on amongst others, whether the trial was conducted fairly and in compliance with international standards.
Mmegi has a copy of the court order issued on Monday. The First Respondent was Kenya Independent Electoral and Boundaries Commission, Second Respondent was Chairperson of the Commission Wafula Chebukati, while third Respondent was President Uhuru Kenyatta. The dispute revolves around the credibility and reliability of Kenya Integrated Electoral Management Systems (KIEMS), which is also known as Electronic Voting Machines and whether it was used properly during the elections.
Odinga also argues that the data and information recorded in Forms 34A at the individual polling stations were not accurately and transparently entered into the KIEMS kit at the individual polling stations and specifically that in “more than 10,000 polling stations, the data entered into the KIEMS Kits was not consistent with the information and data from the respective Forms 34A.”
The court ordered the First Respondent to give access to all Parties, the following information and data that is in the exclusive possession;
a. The IEBC Election Technology System Network Architecture for the period of 30 days before the elections to the date of the Order of this Court comprising but not limited to:
(i) All the servers used during the Elections;
(ii) number of servers;
(iii) location of servers;
(iv) firewalls;
(v) IP addresses;
(vi) Operating systems;
(vii) Software running applications
The IEBC Election Technology System Redundancy Plan comprising but not limited to:
(i) Password policy;
(ii) Password matrix;
(iii) Owners of system administration password(s)
(iv) System users and levels of access
c. The IEBC Election Technology System Redundancy Plan comprising:
(i) Business continuity plan;
(ii) Disaster recovery plan.
d. Certified copies of certificates of Penetration Tests conducted on the IEBC Election Technology System prior to and during the 2017 General and Presidential Election including:
(i) Certified copies of all reports prepared pursuant to Regulation 10 of the Elections (Technology) Regulations, 2017; and Certified copies of certificate(s) by a professional(s) prepared pursuant to Regulation 10(2) of the Elections (Technology) Regulations, 2017.
e. In relation to KIEMS Kits:
(i) Import testing certification in relation to all KIEMS Kits;
(ii) Static IP addresses of each KIEMS Kit used during the Presidential Election;
(iii) Specific GPRS location of each KIEMS Kit used during the Presidential Election for the period between and including August 05, 2017 and August 11, 2017;
(iv) Certified list of all KIEMS Kits procured but not used and/or deployed during the Election;
(v) Polling station allocation for each KIEMS Kit used during the Presidential Election;
(vi) Audit log of what each KIEMS Kit used during the Presidential Election transmitted from Polling Stations to Constituency Tallying Centres and to IEBC National Tallying Centre; and from IEBC Result Transmission Database to Media Houses Application Protocol Interface (API) (logs of media data update). Log must also show:
(a) Time of transmission from KIEMS Kit to the IEBC Result Transmission Database; and
(b) Time of transmission from IEBC Result Transmission Database to the Media Houses API;
(c) Count of Identified Voters by each KIEMS Kit;
(d) Soft copy of Ids captured in each KIEMS Kit;
(e) Audit log of transmission of scanned Forms 34A from each of the KIEMS Kits.
(f. Technical Partnership Agreement(s) for the IEBC
Election Technology System including but not limited to:
(i) List of the technical partners;
(ii) Kind of access they had;
(iii) List APIs for exchange of data with the partners.
g. Log in for the period of 30 days before the elections to the date of the order of this court of trails of showing the trail of users and equipments into all the IEBC Servers.
h. Log in for the period of 30 days before the elections to the date of the order of this court of trails of users and trails of users and equipments into the KIEMS Database Management Systems.
i. Administrative access log into the IEBC public portal between August 05, 2017 to date.
The First Respondent be compelled to give access to and supply to the court and to the Petitioners for scrutiny, certified photocopies of the original Forms 34As 34Bs and 34Cs prepared at and obtained from the polling stations by Presiding Officers and used to generate the final tally of the Presidential election, and pursuant to such production leave be granted for the use of an aid or reading device to assist in distinguishing the fake forms from the genuine ones.
The First Respondent be compelled to give the Petitioners access Form 34As 34Bs and 34 Cs from all 40,800 polling stations.
The court also granted leave to the Petitioner/Applicants to:
(a) Rely on and or file further affidavits in support of the petition and or the affidavits already in court, as well as to respond to the Respondents’ affidavits.
(b) File such other affidavits in response to or reply to any responses filed by the respondents.
The Petitioners stated that the KIEMS System was “penetrated and/or deliberately compromised and used in a manner not intended by law so as to interfere with and affect the result of the Presidential Election.”
“The petitioners also contend that prior to 8th August 2017, the 1st Respondent deliberately refused to respond to or accede to numerous requests that were made by NASA through its Chief Executive Officer, and its agents. It is their further contention that the information and data that is sought is critical to demonstrate that the 1st Respondent did not conduct a free, fair, secure, verifiable, accountable and transparent election,” the court said.
The Petitioners, aware of the limited time this court has to determine the Presidential Election Petition before it, pray that the orders sought should be granted expeditiously as no prejudice would be caused to the Respondents in granting them.
“In addition to the above, it is the Petitioners’ case that based on Dr. Otumba’s analysis and hypotheses of the Presidential Election contained in his report dated August 17, 2017, the results declared by the 2nd Respondent, it is impossible to verify individual results obtained from any individual polling station and the systematic data, with no characteristic of randomness, indicated a programmed data transmission system that was symptomatic of unreal and cooked figures hence the need for the orders sought in the Notice of Motion”.
Regarding spoilt and rejected votes, it is the Petitioners’ case that an analysis of those votes shows that 395,510 such votes are unaccounted for and are indicative of illegal manipulation as well as alteration of rejected and spoilt votes during tallying of all votes.
That therefore a scrutiny of the IEBC System, logs and returns is imperative and in submissions, the Petitioners have argued that the Presidential Election Results were made in absolute breach of/and noncompliance with the mandatory provisions of Sections 39(1C) and 44 of the Elections Act as well as the Elections (Technology) Regulations, 2017.
In that regard, they contend that the KIEMS was designed in a manner to ensure that text results could not be transmitted without images on the prescribed form embodying the totality of election results in every polling station. The end result, in their view, was that the evidence adduced, points to indicators of interference with the KIEMS system, fraud in the filing of Forms 34A, 34B and 34C and the KIEMS system was not secured as by law required.
It is their other view that the said system was breached and/or deliberately compromised and used in a manner not intended in law.
The court further ordered that an information and communications technology (ICT) officer designated by this court from amongst its ICT staff and two independent IT experts appointed by the court shall supervise access to the technology at such a venue as they may determine in consultation with the parties.
The parties to the petition are entitled to have a maximum of two agents/experts in each of the exercises above.
The agents shall at all times comply with the directions of the Registrar and the ICT officer to ensure expeditious conclusion of the above exercise.
The Kenyan government has complied with the order despite the short timeframe given.