LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS Issue 3: Discharging the Burden of Proof The procedures governing the burden of proof and the standard of evidence that will be applied in election cases must be well-designed and established in advance of the start of an electoral process. In most jurisdictions, official election results typically enjoy a presumption of validity and challengers bear the burden of showing why they should be set aside.62 But the extent of the challenger’s burden of proof varies depending on the jurisdiction. Considering that electronic evidence in elections can be difficult to access for a petitioner or for the courts, the Supreme Court in Kenya in Raila Amolo Odinga & Another v. Independent Electoral and Boundaries Commission & 2 Others (2017) shifted the burden of proof from the petitioner to the respondent (the IEBC) to prove that the election was conducted in accordance with the laws and rules in place, once it was satisfied that the petitioner had discharged the burden of proof to a sufficient degree. The court then ruled that the IEBC had not discharged this burden in its responses to the Court, including by refusing to provide access for the petitioners to its servers and transaction logs. Because the IEBC did not provide the full access requested in the order, and the Court considered that no reasonable explanations were provided by the IEBC to justify irregularities, the Court stated it “had no choice” but to accept the petitioners’ claim that either the servers were infiltrated and the data compromised, or that the IEBC itself had intentionally or unintentionally compromised the data. 33 As presented in the IFES paper, When are Elections Good Enough?, courts have adopted different approaches to the burden of proof based on different balances between the presumption of validity and the need to get at the truth. 34 “A stronger presumption of validity may be most suitable in cases where the rules of evidentiary discovery give challengers the tools they need to gather the evidence required to make their cases. Where systems of evidentiary discovery are weak, or where courts are unable to compel defendants or third parties to comply with demands for information, a more flexible standard may be appropriate.”35 In her dissenting opinion in Raila Odinga & Another v. IEBC & 2 Others (2017), Honourable Justice Njoki Ndunga writes, "[172] Having determined that failure of technology could not supplant the will of the people, recorded in verifiable ballots and other election material and the results declared in (a) available (b) ascertainable (c) unchallenged (d) proper statutory instruments of declaration, it is my opinion that the Petitioners‘ case to exclude results from 11,000 polling stations which were out of 3G and 4G network would be an affront to the Constitution and the right to franchise." Arguably, the case hinged upon the Court's interpretation of the concept of the shifting burden of proof, whereby once the petitioner had established some illegalities and irregularities, it fell to the IEBC to prove that these were not of sufficient scale or scope as to overturn the result. This shift of the burden of proof by the court See section 299 of the ruling: “The IEBC in particular failed to allow access to two critical areas of their servers: its logs which would have proved or disproved the petitioners’ claim of hacking into the system and altering the presidential election results and its servers with Forms 34A and 34B electronically transmitted from polling stations and CTCs.” 34 Vickery, Ennis, Ellena, When are Elections Good Enough? (2018), p.18. 35 Ibid. 33 16