ELECTION TECHNOLOGY LAW AND THE CONCEPT OF “DID THE IRREGULARITY AFFECT THE RESULT OF THE ELECTIONS?” Paper by Hon. Justice (Prof) Otieno-Odek Esq – Judge of Appeal and Director, Judiciary Training Institute. 1 | P a g e Table of Contents ABSTRACT: ..................................................................................................................................................... 4 INTRODUCTION: ............................................................................................................................................ 4 CONSTITUTIONAL PRINCIPLES ANDLEGAL FRAMEWORK FOR KENYA’S ELECTORAL SYSTEM ...................... 5 QUANTITATIVE AND QUALITATIVE PRINCIPLES OF KENYA’S ELECTORAL SYSTEM ....................................... 6 ELECTION TECHNOLOGY LAW IN KENYA....................................................................................................... 8 TERMINATION OR SUSPENSION OF USE OF ELECTION TECHNOLOGY ....................................................... 15 BIOMETRICS IN ELECTION DISPUTE RESOLUTION ...................................................................................... 17 REMEDY FOR VIOLATION OF PROCUREMENT RULES – JUST AND EQUITABLE REMEDY ............................ 24 Enforcement and remedy ........................................................................................................................... 27 PUBLIC PARTICIPATION IN GOVERNANCE and ELECTORAL MATTERS ........................................................ 31 CONCEPT OF “DID THE IRREGULARITY AFFECT THE RESULT OF THE ELECTIONS?” .................................... 35 PRESUMPTION OF VALIDITY OF ELECTION RESULTS .................................................................................. 37 CONSTITUTIONAL AND LEGAL CONSEQUENCES OF VIOLATING ELECTION PRINCIPLES – THE TEST OF SUBSTANTIAL NON-COMPLIANCE............................................................................................................... 39 COMMENTARY ON APPLICATION AND INTERPRETATION OF SECTION 83 of the ELECTIONS ACT ............ 43 Section 13 of the Ballot Act of 1872 ........................................................................................................... 44 Section 83 of the Kenya Elections Act:........................................................................................................ 44 BURDEN OF PROOF IN ELECTION PETITIONS .............................................................................................. 45 THRESHOLD AND STANDARD OF PROOF IN ELECTION PETITIONS ............................................................. 48 EXTRA-LEGAL CONSIDERATIONS IN THE RESOLUTION OF PRESIDENTIAL ELECTION DISPUTES ................. 55 MEANING OF “AFFECT THE RESULT OF THE ELECTION” ............................................................................. 57 BENFORD’S LAW AND FORENSIC VERIFICATION OF ELECTION RESULTS ................................................... 81 Legal Status of Benford’s Law ..................................................................................................................... 84 COMPUTER FORENSICS: HACKING OFELECTION TECHNOLOGY EQUIPMENT AND THE BEST EVIDENCE RULE ............................................................................................................................................................ 86 WHEN SCRUTINY AND RECOUNT AFFECTS THE RESULT ............................................................................. 96 TYPOLOGIES OF VOTES: VOTES CAST, VALID VOTES, SPOILT BALLOT, DISPUTED VOTE, REJECTED VOTES AND STRAY VOTES .................................................................................................................................... 102 JURISPRUDENCE ON CREDIBILITY OF ELECTION PETITION WITNESSES .................................................... 108 ELECTION PETITIONS MUST BE CONCLUDED WITHIN TIME LIMITS ......................................................... 112 CERTIFICATE OF DELAY AND APPEALS IN ELECTION PETITIONS ............................................................... 115 APPEALS AND STAY OF CERTIFICATE OF THE ELECTION COURT ............................................................... 125 POINTS OF LAW and JURISDICTION OF THE COURT OF APPEAL IN ELECTION PETITIONS ....................... 130 2 | P a g e CERTIFICATION OF APPEALS FROM THE COURT OF APPEAL TO THE SUPREME COURT .......................... 136 NOTICE APPEAL TO THE SUPREME COURT ............................................................................................... 141 DOCTRINE OF MOOTNESS AND ACADEMIC EXERCISE .............................................................................. 142 JUDICIAL INDISCIPLINE, DOCTRINE OF PRECEDENT AND ORBITER DICTA ................................................ 143 JUDGEMENT MUST BE WRITTEN IN SIMPLE LANGUAGE .......................................................................... 147 3 | P a g e ABSTRACT: Four issues predominantly determine election integrity. These are: admission of eligible voters, collection of ballots from voters, counting of ballots, and public belief that the overall electoral process is transparent and accurate. If the public or any candidate has no confidence in the integrity of the election result, disputation arises. It is in this context that election disputes are inherent to elections. In any election petition, there is one critical issue that must be proved for the petition to succeed – that the alleged irregularity affected the result of the election. Failure to prove that the irregularity affected the result of the election means that the petition must fail. This paper explains the concept of irregularity affecting the results of the election and uses case law to illuminate which result must be affected and how it is affected. The paper offers a synopsis of election technology law in Kenya and emerging jurisprudence therefrom. It explores legal issues on computer foresincs and hacking of election technology equipment. INTRODUCTION: The electoral process is vulnerable to misuse in several ways and in the process, distorting the picture in which the obvious may be completely different from the real. Challenging an election, its conduct or its results, should not be perceived as a reflection of weakness … but proof of the strength, vitality and openness of the political system - the right to vote would be merely abstract if the right to sue to enforce it was not guaranteed in law. (As per Denis Petit (OSCE / ODIHR), Resolving Election Disputes, 2000). The contest in an election petition is really between the electoral constituency on one hand and the person or persons complained of on the other. Once the machinery of election dispute resolution has been activated, the petition continues for the benefit of the whole voting constituency. It is for this reason that prima facie, a petition once filed cannot be withdrawn. (See Sheodhan Singh -v- Mohan Lal Gautam (1969) 3 SCR 417; (1969) 1 SCC 408); see also rule 21 (1) of the Kenya Elections (Parliamentary and County elections) Petition Rules, 2017). Election petitions fall within three, sometimes overlapping, categories: First, petitions alleging an error on the part of an election official (this includes a petition 4 | P a g e based, for example, on a complaint that the votes were not correctly adjudicated as valid or invalid or not counted or not tallied accurately, or that some administrative error occurred in filling election Forms); second, petitions alleging that a candidate or agent of a candidate committed an electoral malpractice of a criminal nature; and third, that the electoral process did not substantially comply with the constitutional principles of the electoral system. In any of the three categories, an allegation of non- compliance and violation of constitutional principles of the electoral system is made. It is thus imperative to identify the constitutional principles and the legal framework underpinning Kenya’s electoral system. CONSTITUTIONAL PRINCIPLES ANDLEGAL FRAMEWORK FOR KENYA’S ELECTORAL SYSTEM The legal framework for Kenya’s electoral system is contained in Articles 81 and 86 of the Constitution. In addition, Sections 39 (1) (C) and Section 44 (4),(5) and (7) of the Elections Act as amended in 2016 make provision for technology in Kenya’s electoral law. Further, Section 44 (A) of the Election Act as amended in 2017 underpins the regime for election technology law. Other provisions of the Election Act provide the regulatory framework for the conduct of elections. Article 81 (e)of the Constitution establishes the principle of “free and fair elections” as the cornerstone of the electoral system in Kenya. The Article constitutionalizes and describes the environment in which elections are to be conducted. The elections must be conducted in a free and fair environment and the voting must be by secret ballot. Free and fair elections is defined to include an election that is free from violence, intimidation, improper influence and corruption; the electoral process must be transparent and administered in an impartial, neutral, efficient and accurate manner. The atmosphere in which the elections are conducted determines the quality, integrity and credibility of the electoral results. Article 86 makes provision for the method, technique and instrumentalism through which elections are conducted on the voting day - whatever voting method is used, the system must be simple, accurate, verifiable, secure, accountable and transparent. The results of the votes cast must