The Appellate Court on Friday dismissed a case filed by National Super Alliance, which sought to compel the electoral body to exclusively use electronic system on the polling day on Tuesday.
The three judges, however, directed the Independent Electoral and Boundaries Commission (IEBC), to adhere to a memo issued to presiding officers across the country by its CEO Ezra Chiloba.
In the memo dated July 27, Mr Chiloba states that if the system fails to identify a voter through his or her biometrics, the presiding officers are required to use a voters’ identity card to identify them on a printout register.
The presiding officer is required to agree with all the agents and the candidates about the voter, before he or she is allowed to vote. The voter will then fill form 32 a, before being handed the ballot papers.
Mr Chiloba also assures that adequate technicians have been deployed across the country, to work on the system, in case it fails.
Judges Roselyn Nambuye, Martha Koome and Daniel Musinga upheld the ruling of the High Court, saying they found no basis to set it aside.
Nasa had opposed plans by the Independent Electoral and Boundaries Commission (IEBC) to use a register, generated from the voter electronic system, to identify voters in case the system fails on polling day.
According to Nasa’s lawyer Paul Mwangi, the introduction of manual backup is a plan to rig the elections.
“One of the dangers of the manual system is that it has no inbuilt mechanism to stop fraud. It is open to manipulation,” Mr Mwangi said.
He urged the judges to rule that the Tuesday elections should be exclusively electronic, to lock out anyone who might conspire to rig the polls.
His colleague Prof Ben Sihanya agreed that technology will always fail, but Regulations 69 and 83 are not complementary system Parliament anticipated.
IEBC and Jubilee have questioned why Nasa had to wait until the last minute to challenge the regulations yet they were published in February.
Through Paul Muite, IEBC argued before the appellate court that the regulations were subjected to public participation when Parliament held joint committee sittings late last year and in early 2017.
Attorney General Githu Muigai urged the Judges to dismiss the case saying any intervention by the court at this stage, will be ‘imprudent”.
Prof Muigai said IEBC has put in place a complementary mechanism, as required by the Section 44(a) of the Elections.
Nasa moved to court seeking to compel IEBC to use electronic system to identify voters’ and transmit results in the forthcoming general election.
The opposition argued that IEBC has failed to put in place mechanism to support the establishment of a system to complement the electronic system.
But a bench of three judges dismissed the case saying it would not be feasible to declare that the elections be exclusively electronic.
The Judges said the impact in case the exclusive electronic system fails, would throw the entire election into jeopardy and imperil the country’s democracy.
But Nasa, not satisfied with the outcome, moved to the Court of Appeal.