Opposition to the introduction of Electronic Voting Machines (EVMs) in local elections received a major boost on Friday when the Supreme Court in Kenya nullified the results and called for a re-run of elections in 60 days, confirming that the integrity of the elections has been compromised by irregularities. Led by their alliance partner, Botswana Congress Party (BCP), the opposition Umbrella for Democratic Change (UDC) has launched a spirited campaign against amendments to the Electoral Act sneaked in by ruling party legislators that paved the way for the use of EVMs in 2019. Such amendment has attracted a lot of controversy and backlash from members of the public over failure to consult prior to passing the law, and the susceptibility of the machines to manipulation. The BCP has since filed a lawsuit to block the use of EVMs, and received a major boost when on Thursday Justice Lot Moroka dismissed an application to have the matter thrown out on a technicality. According to Reuters news agency Kenya’s Supreme Court found that the electoral board committed "irregularities and illegalities" during last month's presidential vote, harming the integrity of the election that handed President Uhuru Kenyatta a second five-year term. “Four out of six judges said that the vote had been harmed by irregularities. Judges then allowed the two dissenting justices to read their opinions before giving their verdict on whether the irregularities were serious enough to nullify the election results,” Reuters reported. Local judge Dr Oagile Key Dingake was among the eminent jurists that observed proceedings of the Supreme Court which heard the Kenyan presidential election petition where the opposition National Super Alliance alleged that machines were hacked. Justice Dingake was part of the Trial Observation Mission (TOM) which was headed by former Zambian Chief Justice Earnest Sakala and included Justice Moses Chinhengo of Zimbabwe and human rights lawyers – Martin Masiga from Uganda and Brian Penduka from Zimbabwe.
The Kenyan developments come as Botswana opposition parties have launched a strong opposition to the use of Electronic Voting Machines (EVMs) in the 2019 General Elections. Botswana Congress Party (BCP) has registered a case with the High Court in Francistown to overturn the Independent Electoral Commission’s (IEC) intended use of EVMs in the forthcoming elections. The matter is before Justice Lot Moroka who on Thursday blocked the Attorney Generals Chambers from having the matter dismissed on a technicality that the BCP had failed to file their declaration on stipulated time. Moroka said it would be a fallacy to have the matter thrown out without hearing its merits. “The minor infringement does not warrant the applicant’s case to be dismissed based on a technicality before its merits are heard. This matter does not only concern the parties before court but also has a profound effect on voters who determine which party is given the reigns to govern the country,” Justice Moroka insisted. BCP is seeking among others that all sections of the Electoral (Amendment) Act No 7 of 2016, which provide for the replacement of the voting Ballot Paper by EVMs de declared unconstitutional and in violation of Section 32 (3) (c) of the Constitution of Botswana and hence should be set aside and struck out. In response to Justice Moroka’s ruling BCP President Dumelang Saleshando was quoted in the local media saying: “The crux of our matter is that we want to prove to the court that EVMs can be hacked. In the first place there was no need for the AG to apply for the dismissal of the matter before its merits are heard. At the right time during the case, the BCP will avail EVMs experts to prove that EVMs can be hacked”.
In reaction to Kenya court ruling BCP spokesperson, Dithapelo Keoraptse said: “There is a serious democratic deficit in Africa because most ruling parties seldom want to create or strengthen oversight institutions. The advent of ICT in the electoral process has opened an avenue for rogues to extend their power through unscrupulous means. Kenyan elections and the introduction of EVMs in Botswana are clear examples of attempts to steal the vote through the use of ICT. However, the Kenyan judiciary mastered courage and annulled the election of Uhuru Kenyatta and that is a positive development in respect of judicial independence. EVMs, ICT usage in keeping data or electoral records, identification of voters and counting of votes will continue to be used in Africa to steal the vote if electoral management bodies are less independent and things are done in secret without the involvement of civil society, media and political parties. Transparency and or openness are prerequisites for democratic elections and some aspects of ICT undermine this key tenet. We draw good lessons from Kenyan case and other countries which shunned some aspect of ICT use in elections such as Germany, Netherlands and others. We will fight EVMs in and outside court. We are prepared to pay with our lives to protect the integrity of the electoral process and the country’s democracy and its durable stability”.
Controversy has been raging over EVMs, with the Independent Electoral Commission (IEC) recently pulling out of scheduled heckathlon at the eleventh hour, after inviting computer geeks to come forward and demonstrate if indeed the machines can be tampered with. The Indian suppliers paraded at the demonstration in Gaborone declined to avail the machines for hacking experiment, despite that EVM Coordinator at IEC Gabriel Seeletso had been on a whirlwind tour around the country preaching that the machines Botswana is procuring for 2019 elections will be tamper proof. Curiously, Seeletso even claimed that the EVMs will not be computer-based. A computer engineer has called Seeletso's bluff, drawing attention to the definition of a computer: "an electronic device for storing and processing data, typically in binary form, according to instructions given to it in a variable program." Motlhaleemang Moalosi says with this definition in mind, a careful look should be made about what the EVM does. He says an EVM is an Electronic Device as per its name; it processes Data (Votes) and Stores such Data for later retrieval; the EVM then adds the votes and outputs the total votes counted at the particular polling station.He argues that this therefore means that the EVM is computer based and what Seeletso and the IEC told Batswana was a carefully calculated lie to make the EVMs appear as if it is fortified and could not be hacked or manipulated. "Now that we have dismissed the fallacy that the EVM is not computer based let us look at the vulnerabilities of this Device. As a computer with programs running inside it is clear that, as demonstrated by various experts, this device can be manipulated," he says.
He enumerates the obvious vulnerabilities as:
1. The IEC has no control of the source code running inside the machine. As a programmable device, a rogue programmer can manipulate the code and create a time bomb that would count the votes cast in favour of one of the competing parties. This code can be made to run on a particular day. And since the BDP knows when the 2019 elections will be they can have this programmed into the machines.
2. Without printouts, there is nowhere we can independently verify that the votes cast are tabulated as cast. It is not clear why the IEC is hostile to the introduction of a printout as it is done in India, as per the Indian Supreme Court order. The only conclusion is that the IEC has something sinister to hide.
3. Instead of displaying the results at the polling station, the IEC has decided to take all the machines to a central place where there are connected to another machine to add up all the numbers. This is strange as it introduces a loophole in which someone can switch machines, or the tabulating machine can itself be programmed to change the results as they come in. A simple algorithm can do the trick. My conclusion is that, there is something fishy here. And the IEC people know it.