LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS annulling an election result without evidence of outcome-determinative fraud or irregularities has been examined in IFES’ separate paper, When are Elections Good Enough? 29 In Raila Amolo Odinga & Another v. Independent Electoral and Boundaries Commission & 2 Others (2017), the Supreme Court of Kenya considered whether there were illegalities and irregularities in the conduct of the 2017 presidential election and, if so, the potential impact on the integrity of the election process and result. More specifically, the court considered whether the transmission of results forms, and the verification and declaration of results conducted by the Independent Electoral and Boundaries Commission (IEBC), was conducted in accordance with the Constitution and applicable laws. The court ruled that illegalities and irregularities in the process rendered the result of the election opaque and unverifiable, and therefore indeterminate. Irregularities noted by the court included the delay by the IEBC in announcing its inability to transmit results electronically in some areas (and in communicating alternative systems for the transmission of results) due to the weak telecommunications network; and delayed or missing polling station results forms. 30 As such, the court declared the elections to be invalid, null, and void, and the IEBC was ordered to conduct fresh elections within 60 days, in accordance with Article 140 of the Constitution. The court noted that no election is perfect, but “where parliament produces a technology roadmap with the sole aim of ensuring verifiable transmission” and the IEBC does not adhere to this, “how can the court close its eyes?” Unlike the Malawi Court, the apex court in Kenya did not give the IEBC specific guidelines for improving the results transmission process in 2017 but said the judgment “ought to lead the IEBC to go back to the drawing board.” The court gave a clear signal to the IEBC to transparently implement new electoral logistics and procedures (testing, piloting and training on the results transmission system), resolve fundamental disagreements among key stakeholders, and demonstrably prevent anomalies identified by the court — all within a compressed timeline. While the IEBC made changes to its procedures, it was not technically or legally possible for the IEBC to fully comply with the scope of changes suggested by the court order within sixty days of the annulment — including, for example, because of restrictive deadlines around technology procurement and public consultation in the law. This reinforces the point that an annulment is a significant remedy, and a re-run election may not be able to resolve certain issues — particularly as it pertains to replacing or modifying election technology. As IFES has written about previously, a decision to annul an election is one that should not be taken lightly: “Repeat elections impose unexpected costs on state budgets and candidates; the normal operation of legislatures and governments may be disrupted while a revote is organized; candidates may refuse to participate in the fresh elections, leading to a political crisis; and repeat elections may themselves be subject to irregularities.” 31 Hence, many countries follow an “outcome-determinative” approach to annulment. 32 That is, where the outcome has not been impacted, other remedial action, such as prosecution for fraud, may still be appropriate, but the results are allowed to stand. In 2022, the Supreme Court in Kenya dismissed the nine petitions filed against the presidential but in its full judgement released on Oct. 26, it issued two recommendations regarding the access to the servers. IFES, When are Elections Good Enough?, IFES 2018, https://www.ifes.org/document/when-are-elections-good-enough-validating-or-annulling-election-results Other irregularities included the lack of security features of some results forms, and the lack of a stamp, seal, or signature by a polling agent on various forms. 31 IFES, When are Elections Good Enough?, IFES 2018, https://www.ifes.org/document/when-are-elections-good-enough-validating-or-annulling-election-results 32 This includes all Council of Europe countries, as well as the U.S., Canada, and Australia. 29 30 15