LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS During the conference of the Africa Electoral Jurisprudence Network held in July 2022, judges also inquired about expert testimonies, and how judges deal with different — and potentially contradictory — technology experts. Initial research showed that there is an emerging approach in some common-law jurisdictions (Australia, England, U.S.) of the use of concurrent expert evidence, known as “hot-tubbing” the experts. The judge leads the process, whereby both experts are sworn in concurrently and questioned together. The judge may ask the experts to provide a joint teach-in on the issues in dispute at a general level; prepare a joint statement of the issues they agree on and the issues in dispute; answer the judge’s questions on the issues in dispute, including commenting on each other’s views and asking each other questions and allow limited cross-examination by counsel. While more research is needed this method is thought to increase the quality of the expert evidence and improve the court’s understanding of it. It acts as a constraint on experts behaving as partisan advocates and emphasizes their duty to assist the court. Peer scrutiny helps to avoid misleading answers and helps distil complex competing views. It may save court time and costs, although it requires greater preparation time by the judge. This approach also will require that the experts to be of a similar level of expertise and the judge needs to avoid a more assertive expert dominating the proceedings. Whether the court admits amicus curia with ICT expertise or rely on independent expert testimony and cross examine them, the judge should remain aware of the risk of potential political bias. The marked increase in the volume of digital information in the election process presents significant challenges for petitioners, who may not be aware of the types of digital evidence that could support their claims and may not be given access to the data by the EMB or other institutional stakeholders due to security and integrity concerns. These challenges may justify a shift in the burden of proof as discussed in a previous section. It also presents a challenge for the judges, registrars, or clerks who will be responsible for receiving, recording, storing, analyzing, or archiving this information. Issue 6: Integrity of the Data and the Chain of Custody As pointed out in IFES’ Election Investigations Guidebook, "investigative bodies and other relevant institutions — such as law enforcement agencies, election management bodies, prosecution services, and courts or tribunals — must establish communication mechanisms in advance of the election process to facilitate…effective cooperation during investigations.” 57 This statement is particularly relevant for the investigation of election technology, where in the absence of cooperation between the EMB and the court at the time of collecting, storing, and retrieving the evidence, there is a risk of damaging the integrity of the data being investigated. The marked increase in the volume of digital information in the election process presents significant challenges for petitioners, who may not be aware of the types of digital evidence that could support their claims and may not be given access to the data by the EMB or other institutional stakeholders due to security and integrity concerns. Petitioners and respondents, including EMBs and their lawyers, need to be aware of standards for verification and accuracy of evidence to ensure proper collection of digital evidence. It is crucial to ensure that the evidence is reliable and admissible. 58 In Kenya, in William Odhiambo Oduol v. Independent Electoral & Boundaries Commission & IFES. Election Investigation Guidebook (2020), p.96. https://www.ifes.org/publications/election-investigations-guidebook Kenya, Republic v. Mark Lloyd Steveson, High Court (Kiambu) Criminal Revision No. 1 of 2016) & Millitonic Mwendwa Kimanzi Kitute v. Independent Electoral and Boundaries Commission & 2 others, Election Petition (Kitui) No. 1 of 2017- [2017] eKLR. Kenyan courts referred to the authenticity and reliability of such evidence. 57 58 22