Will The Supreme Court Of Kenya Acquit Itself? Technology And Election Legitimacy: A Case For Deployment Of Distributed Ledger Technology.
In presidential election petitions, it is the court on trial. The ultimate test for the court is not whether it anoints one party victor and the other vanquished, but whether its decision engenders the most important outcome of any election: a legitimate government to take charge of the affairs of state.
The Supreme Court of Kenya is on trial for the second time in its history. How the court determines the questions on the use of technology in the ongoing petition will be the ultimate verdict on the veracity of its decision.
Courts have long settled the principle that a contention- free election is impossible to organize. Despite the attempt to provide transparency by allowing media houses to tally the results and avail the masses with information in real time, the process was fraught with contradictions and suspense. Media houses displayed different results at different times. This should not have happened if they were all drawing results from a single source at specific times. The Independent Electoral Boundaries Commission (IEBC) delayed announcement of the winner, doing so only at the eleventh hour.
Kenya’s recently concluded general election raises a new dimension of contention and renews questions two Supreme Courts in East Africa have faced before. At the heart of the ongoing hearings is the centrality of the role of technology in strengthening or undermining the legitimacy of elections in Kenya, and by implication the will of the people.
Various pleadings filed with the Kenyan Supreme Court contain allegations of hacking into the IEBC systems to manipulate the results of the election to favor William Simeoi Ruto. Perhaps the most famous of these affidavits recounts the story of a confidential source who divulged the scheme to one John Mark Githongo. In his affidavit, John Mark Githongo reveals that the hacks were the mastermind and work of a team of 56 computer specialists, including the said confidential informant.
Technicalities of the law of evidence aside, three of the nine issues that the Kenyan Supreme Court has drafted for determination relate directly to these allegations on technology. Thus, it is not unreasonable to conclude that the court’s handling of the controversy surrounding the hacking or manipulation of the computer systems at the IEBC Tally Centre will be a major dispositive factor in the upcoming judgment. For this reason, an early look at why these questions are critical is warranted.
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Technological Process Of The Kiems As We Understand It So Far.
This election, regulated by IEBC was a blend of the old and the new. Whilst voters were provided ballot papers to cast their votes, the IEBC used the Kenya Integrated Election Management System (KIEMS) as the primary mode of voter verification and the means of transmission of the results from one polling station to the constituency, county and national tally centers simultaneously.
Voters were registered through the KIEMS kit, which possessed the voters data base. Having verified their identity through the Electronic Voter Identification (EVID) system, the voters were handed ballot papers on which their votes were placed. This was followed by the count and the KIEMS through one of its transmission systems enabled presiding officers to transmit the results through specially configured mobile phones to the tallying centers.
Technically, Kenya used a centralized network. With such a network, the main server has the authority to make changes to the system, code and data as the person in charge may deem fit. The concentration of the authority with the server makes it an easy target for hackers to breach its security and effect illegal transactions and edits.
Data from all the different polling stations were shared to one server or recipient of the information. An intending hacker merely ought to alter the data on the main server to discredit the integrity of the data across the network. Having gained access to the server, one could alter the results from the different sources that were in turn tallied by the system and affect the final outcome, as narrated by the alleged unnamed hacker.
The use of a centralized network and reliance on this final and central server to determine the result of the election was evidently a potential vulnerability. A contest to the integrity of the results derived from this system therefore impairs the legitimacy of the election.
The Supreme Court of Kenya must now decide the veracity of any of these claims. The ramifications of the decision on the legitimacy of the results, and its impact on democracy, necessitate a deeper intellectual inquiry. For posterity, however, it suffices to point out what a viable alternative would be.
Distributed Ledger Technologies and the Need for Trust and Truth Mechanisms in Elections
Distributed ledger technologies (DLTs) mitigate the challenges presented by centralized systems. By eliminating a single point of failure, these technologies render the manipulation of information far more difficult. In the simplest terms, a blockchain, one of the best known DLTs today, is a cryptographic database maintained by a network of computers, each of which stores a copy of the most up- to-date version.
As such, it works as a single logical data network installed on various computers (nodes). Although located in different areas, they are not connected to a single server but rather fully connected to each other with information accessible from any point of the connection.
Practically, each node contains its individual data and collectively, the blocks make up a chain of blocks. Each block has a header used to organize the shared database. The components of the blocks header would be its unique fingerprint (hash), a timestamp and the hash of the previous block.
In the context of elections, each block stores information about the number of voters, votes cast and the different votes per candidate for each polling station and this has a stamp corresponding with the time the information is put in the block. The unique fingerprint (hash) would thus be the total of all votes contained in that block and the winner, a timestamp, and the hash of the previous block (last entered results).
Thus, the different nodes, these being different polling stations for instance, would have a block comprised of information that is collectively on the distributed ledger, ideally being the national tallying station data.
How Distributed Ledger Technology Would Have Helped Subdue The Contentions
Unlike centralized data networks, DLTs limit the possibility of hacking and making changes to data contained in the system. Hacking a blockchain is too logistically and technically costly as one would need massive computing power and large amounts of electricity to sustain such an operation.
Any changes to be made would require the consensus of the majority of the nodes. in this case, no change would be made unless it received consensus from all the nodes, practically all the polling stations. Given the sheer size of a presidential election such as Kenya’s, this fete would be near impossible to accomplish without drawing attention, or at all.
In the unlikely event of success, the record of the manipulation would still be accessible on the blockchain, as the data is immutable. Data may be updated, but may not be erased or replaced. Other blocks in the chain would have a copy of this alternated change making it easy to track. Because blockchains rely on peer-to-peer networks and digital signature, anyone can download the blockchain software and assess which account was involved in which transaction. As such, such alterations can easily be traced and tracked.
The immutable nature of the database coupled with the transparency of the blockchain technology provide a viable solution to the risk of hacking and changing of results. The absence of a centralized point of data would render it impossible for hackers to tamper with the integrity of the results by simply having access to and hacking one server.
DLTs provide the added advantage of being transparent. In addition to providing information in real time, the data is explorable by any interested persons with the right tools. In the Kenyan case, deploying blockchain, for instance, would have eliminated the suspense and contradictions caused by varying media reports and late declaration by the now deeply divided IEBC.
Moreover, Blockchain has been calculated to be a more affordable way of carrying out elections. According to Horizon state, an election blockchain firm in Australia, a single vote currently costs between $7.00 and $25.00, when all factors are considered. However, using a blockchain product, this cost would drop to $0.50 per vote.
Therefore, although contentions cannot be magically dispensed with in elections, blockchain technology can be applied to ensure that such contentions are not in regard to the authenticity of the results.
How Blockchain Has Been Used In Elections
Examples abound of the exploration and use of blockchain in elections. In 2018, Blockchain firm Agora ran a program in which they stored up to 70% of the votes cast and tallied in the Sierra Leone Presidential election on the blockchain. This made these results immediately available to any interested party to view, count and validate. This was the first use case of the deployment of DLT in the context of an African country presidential election.
In the same year, Thailand used blockchain in their democrat party election. Impressively, at the conclusion of this election, the final results were available in just 12 hours with a total of 127,479 votes from all over Thailand. West Virginia also successfully ran a blockchain trial in the federal general elections for military and other Americans living abroad. This trial also involved using a mobile application with facial recognition technology to compare and verify identity using the photo ID that had been uploaded during voter registration.
The above examples reveal the possibility of deploying DLTs for election purposes. There is sufficient information and capacity for any country looking to solve the trust and legitimacy questions to build the right infrastructure ahead of their next general election. What’s more, the capacity now exists locally. Kenya and Uganda, for instance, are forerunners in the maturity of the growth of local blockchain ecosystems. Leveraging this capacity would reduce the cost of procurement of complicated, and sometimes deeply flawed technological systems during presidential and other general elections.
Conclusion
Kenya has turned some truly critical corners in their presidential election management processes.
First, they did not resort to violence, and hopefully will not revisit their 2008 past. Secondly, they have had a presidential election overturned before.
Consequently, they are not terrified by the prospect.
Thirdly, the Supreme Court is better prepared for the pressures of handling such a complex dispute within the time constraints it presents.
This year’s petition raises the stakes further. It draws technology to the heart of the dispute. More profoundly, the entire election exercise makes the case for why it is time to deploy DLTs in election management, and for lawyers and judges to understand the subject most deeply.
Michael Kimani, a leading voice in the DLT ecosystem in Kenya has rightly observed that Kenya’s election is a perfect case study on digitization of national elections and the use of DLTs in national elections. He adds further that the 2022 election is a pilot and design exercise for a transparent election of the future. In his view, the electorate have been part of co-designing a fair election of the future, but that the court cases are stress tests for the electoral process.
Two deeper lessons abound.
The ongoing Petition hearings have drawn the Supreme Court of Kenya into an uncharted territory. To what extent will the court use technical means to investigate the truth behind the hacking allegations? That is the simpler question. The deeper question, however, is how far the court will go in providing the necessary leadership to enshrine and advance truth and legitimacy in the electoral results generation and adjudication processes.
Examples from Uganda have, sadly, been less insightful.
Challenges to the use of the BVVK machines in the 2016 presidential election were frustrated by the Electoral Commission shipping out the machines back to South Africa before the petition hearings commenced. Nevertheless, the Supreme Court of Uganda issued, as part of its structural interdict, a requirement that the Attorney General pursues the enactment of laws on, among other issues, the use of technology in elections. The Attorney General ignored the court until a subsequent challenge seeking that the then sitting office bearer be cited for contempt. Even then, the Attorney General’s responses to the Supreme Court’s insistence on need for a robust legal framework for the use of technology in elections were lukewarm at best. This has since left the Supreme Court justices looking, in the words of Prof. Oloka Onyango, as hopeless interlopers.
The Bar and the Bench in East Africa must prepare to litigate technology related disputes in a deeply technical manner. How the Supreme Court of Kenya determines the first three draft issues it has set down is only the start of a far more complicated exercise. We suggest that as players in the pursuit of fair adjudication of disputes and handmaidens of the court process, lawyers and judges should encourage the enactment of a robust set of rules to guide, even perhaps ease the handling of these complex questions of law.
Monday September 5th, 2022 will be a defining date for legal minds interested in law and technology. The decision of the Supreme Court of Kenya will quite possibly be one of the most defining judgments on law and technology in the East African region, at least for the near future. We look forward to reviewing how their Lordships will treat the fundamental questions that will undoubtedly chart the course for the role of technology in election management and electoral dispute resolution. What’s more, the Justices have the opportunity to address the most pressing non-legal issue that bedevils every election: how to secure its legitimacy.
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This publication does not necessarily deal with every important aspect of the issues it raises. It is provided for information purposes only and does not constitute legal advice. We recommend that any person seeking related specific legal advice does so from knowledgeable counsel. The views expressed in this publication bind only our firm and do not represent those of our clients.
Kirunda & Co. Advocates is a licensed Ugandan law firm with a keen focus on law and technology.