This judgment was likely mostly written by clerks and other parties. Think of it as reading a speech that you have never seen before for the first time.
The Maraga 4 have practically made it impossible for any election to be compliant with the law. Some examples thus far:
- A failure in technology is a violation of the law. Thus with this flawed reasoning, it suggests that if a KIEMS kit fails or network fails in transmission, it will be considered a violation of the law. Their reasoning is that someone can move to an area with network coverage but they do not account for when a KIEMS kit fails.
- Incomplete compliance with technologically challenged and misinformed court orders means any spurious claims of hacking will be accepted by a court. One need only attack IEBC with impossible to meet court orders in the given time and that will be sufficient for someone to claim IEBC was hacked. The burden of proof now seems to have shifted from petitioners back to respondents on matters technology.
Parliament should take notice of Maraga's publication "Scrutiny in Elections" and take action or any election will continue to be endlessly invalidated on the basis of technological reasons and failure. They have however admitted there is no evidence demonstrating that the manual portion of the voting from registration to the casting of the vote had any issues or irregularities.
As is clear from Bush v. Gore, at times technology fails even in advanced countries. In our country, with no reliable electric supply to many schools and public premises, which are used as polling stations, chances are that technology can fail again. A compromise should therefore be made and clearly provided for in statute. http://kenyalaw.org/kl/fileadmin/pdfdow ... ustice.pdf