LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS enabled it to redress potential imbalances in access to digital evidence relating to technology between the petitioner and the EMB. However, the dissenting opinion by Justice Njoki Ndunga in 2017 raises the question of whether the court has the capacity to examine the important amount of evidence, to record, store, archive the data and be able to protect the integrity of data processed during scrutiny process as discussed under Issue 7 (data protection and privacy) below. This is particularly relevant in Kenya, where the Supreme Court has only 14 days to hear a case and render a decision. 36 It is also important in light of the judgment of the European Court of Human Rights (ECtHR) in Namat Alieyev v. Azerbaijan, which charged domestic courts with the responsibility of “taking reasonable measures to investigate alleged irregularities when the evidence provided by an applicant is insufficient to decide the case but nonetheless strong enough to warrant additional inquiry.“ Unlike the 2017 elections, the Supreme Court did not shift the burden in its recent 2022 Odinga’s presidential petition ruling. The IEBC published the audit report of voter registration, made all the result forms available on a public portal, and held public simulations of the technology prior to Election Day. Following allegations, including hacking of the servers, foreign interference, and manipulation of the results transmission systems (RTS), the Court ordered an audit of the technology with a supervised access to the server of the IEBC and found that the “Scrutiny Report prepared by the Registrar of this court did not reveal any security breaches of the IEBC’s RTS” and that no credible evidence meeting the requisite standard of proof of access to the system “by unauthorized persons was adduced by the petitioners.” 37 The enhanced transparency of IEBC and wide access to evidence in 2022 as well as the clear explanation from IEBC contributed to keeping the burden of proof on the petitioner. The Court found that “the petitioners have failed to discharge the legal burden of proof so as to shift it to IEBC.” 38 In Chilima vs. Mutharika and Election Commission in Malawi, the court also confirmed the more accepted international practice for election petitions that the burden is on the petitioners to prove the case, but found that the petitioners established a prima facie case and thus shifted the burden to the respondent, Mutharika and the MEC, to disprove the allegations. Unlike the Kenya case discussed above, the evidence was satisfactorily made accessible to the court and to the petitioners, allowing the courts to access and compare results forms. Given that the timeframe for appeals related to election petitions in Malawi is not set out in the law and took eight months of deliberation in 2019 (versus 14 days, which is set out in the Constitution in Kenya), this clearly illustrates the impact of deadlines on the ability to gather and assess evidence. The importance of a respondent effectively discharging a burden of proof was also emphasized by the court, which criticized the failure of the EMB to call commissioners as material witnesses. This judgment emphasizes that the use of technology in election results transmission and verification should not dilute commissioners’ responsibilities as to the verification of the results. Issue 4: Admitting and Assessing Digital Evidence and Expert Evidence Compared to physical evidence, alterations to electronic or digital evidence may not be immediately visible; detection of alterations or tampering may require additional expertise, and technology failures or security breaches may damage the data. As such, digital evidence may require different treatment by a court. 36 The Supreme Court in the Odinga case in both the 2017 and 2022 petitions recommended to extend this constitutional deadline in its full judgement. 37 Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment). 38 Ibidem. 17