BY SAM ALFAN.
Deputy President William Ruto’s party will have its way in the election slated for tomorrow.
The court of appeal has overturned a decision by a lower court requiring IEBC to use the manual voter register together with the electronic register.
Three court of appeal judges Fred Ochieng,Mwaniki Gachoka and Luka Kimaru have held that the electoral body will use the directions in the case by NASA in 2017 where the court ordered IEBC to use the printed register of voters only in instances where the KIEMS kits completely fail with no possibility of repair or replacement.
“Upon careful consideration of issues in contention, we are of the considered opinion that the applicant has made a case for the grant of stay on the judgment of the High Court,” ruled the bench.
The ruling comes after UDA filed an application challenging last’s week decision allowing the concurrent use of the manual and electronic registers.
William Ruto party urged the appellate court to suspend the entire High Court decision temporary.
UDA through Lawyer Elias Mutuma the party said that the integrity of the general election, slated tomorrow, is likely to be compromised by the possibility of misuse of the manual voter register since a manual register lacks safeguards for enhancing credibility.
UDA Party said there is an apparent and real likelihood of a serious conflict and confusion in terms of enforcement and implementation of law pertaining the mode of identification of voters during the forthcoming general elections considering that the impugned decision directs IEBC to use a manual register concurrently with the electronic register.
On August 4, 2017, the court of Appeal ordered that IEBC to use the printed register of voters only in instances where the KIEMS kits completely fail with no possibility of repair or replacement.
UDA secretary general Veronica Maina, said the judge made an error in law by failing to appreciate that there is no room for the use of a manual register as the primary means of voter identification.
SG Maina said that doing so would make the provisions of Section 44 of the Elections Act obtuse and academic.
In the application, the party said that the section ensures that there is a complementary mechanism for identification of voters, and will only come into operation upon the total collapse of technology.
On August 4 the High court delivered a judgement whose net effect was directing the Independent Electoral and Boundaries Commission (IEBC) to revert to the use of a manual register as a mode of identification of voter during the forthcoming general elections scheduled for tomorrow.
UDA said it was dissatisfied with the said decision and intends to appeal against the same and has lodged a Notice of appeal.
However, the said decision is likely to be enforced before the intended appeal is lodged, heard and determined since the general elections are scheduled to take place tomorrow.
According to UDA,the said decision now makes the use of a manual register as a primary mode of identification of voters hence prima facie the impugned decision is legally unsound and it dilutes and or amends the mandatory provisions of Section 44 of the Elections Act which dictates that identification of voters is to be done electronically.
UDA argued that he Judge erred in law and in fact by failing to appreciate that section 44A of the Elections Act does not in itself substitute the mandatory use of technology to identify voters but merely tasks IEBC with the duty of ensuring that there is a complementary mechanism for identification of voters and will only come in operation upon total collapse of technology.
“The Judge erred in law and in fact by failing to appreciate that Regulation 69 (1) of The elections (General) regulations (e) does not allow the use of a manual voter register for identification purposes but only as an accounting document,” said the party.
The party fault the judge for quashing the decision of the electoral body thus failing to appreciate that the adoption and integration of the KIEMS kit by the IEBC into the election process is fully within the scope of the Kenyan laws and in pursuant to the mandatory provisions of section 44 & 44A of the Elections Act.
Ruto claim that the judge failed to appreciate that IEBC had not in any way thrown away the option of the use of the Printed Voter register, but had instead preserved its use as the last resort and in accordance to the provisions of Section 44A of the Elections Act and Regulation 69 of the Elections (General) Regulations.
