Recent attention is drawn to the ongoing debate on electoral reforms ahead of the 2021 elections. I have had the opportunity to peruse the proposed reforms, especially those dealing with technology use in elections.
One of the complaints in Amama Mbabazi v YK Museveni & Others (Presidential Election Petition No. O1 of 2016), was alleged use of unreliable Biometric Voter Verification Machines (BVVK) and the transparency and integrity of the process.
The increasing role of technology in the election process was aptly captured by the Supreme Court of Kenya in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & two Others (Presidential Petition No. 1 of 2017) where the Justices reasoned that:
“We further take into account the fact that our electoral system is partly electronic by its nature and hence the role played by technology in this regard cannot be completely ignored.”
In the proposed amendments, Clause 11 of the Presidential Elections (Amendment) Bill, 2019 seeks to amend section 56 of the current Presidential Elections Act by providing that upon completion of voting, every returning officer must transmit electronic copies of the return form, tally sheets and declaration of results forms from which the official addition of the votes was made.
The move to legislate specific provisions on electoral technology is positive and is one of the measures to enhance transparency, trust and verifiability of elections.
However, it can also be abused if solid regulations are not put in place to guarantee data security, appropriate access and operations continuity. An example of progressive elections technology regulation in the region is Kenya’s Elections (Technology) Regulations of 2017. It governs the end-to-end process relating to acquisition, testing, certification, audit, information security, data transfer and storage, access to software and source codes, telecommunication networks and obligations of service providers, data recovery and operations continuity plan, among others.
One of the most revolutionary best practices the Kenyan regulation establishes is the Elections Technology Advisory Committee (ETAC), which advises the Independent Electoral and Boundaries Commission (IEBC) on adoption and implementation of election technology, which may include participation of stakeholders in the implementation and deployment of election technology.
It is comprised of at least three members of the Commission and designated staff of the commission; the registrar of political parties; representatives of the majority party and opposition in Parliament; and ICT professional bodies. They may engage the services of experts or consultants in respect of any of the functions of the Committee, with a prescribed and strict code of conduct.
The above Committee scrutinises everything from procurement of electoral technology, testing, certification, due diligence of service providers, development of an operations continuity plan in case of service outages, coordinates awareness and capacity building programmes to the electoral staff and voters, among other functions.
This is one of the benchmarks that Uganda can adopt to upgrade or supplement existing election technology processes, or in acquiring new election technology to enhance the integrity, efficiency and transparency of the election process.
Furthermore, such safeguards will also make it easier to deal with aspects such as litigation risk in case the results are contested.
In Kenya, the Supreme Court appointed an ICT officer designated by the court from among its ICT staff and two independent IT experts to supervise access to the technology by the legal teams handling the petition. The parties to the petition were also allowed to have a maximum of two agents/experts in the process.
A report on that exercise and related issues was filed in court and it laid basis of the evidence to help in adjudication of the dispute.
There is also need for a regulatory framework on social media campaigning, electoral data analysis, data mining, data sharing/brokerage, predictive electoral analytics and the role of entities such as political consulting and public relations firms in the wake of Cambridge Analytica and Bell Pottinger manipulative data dredging scandals.
As Parliament debates the proposed electoral reforms, I would propose that some of these interventions form part of the discussion.
Mr Kayondo is a partner at Ortus Advocates and specialises in technology law and government policy.