LESSONS ON THE USE OF TECHNOLOGY IN ELECTIONS 2 Others, Election Petition (Kisumu) No. 2 of 2012, the High Court of Kisumu called for a cautious approach to electronic evidence. The High Courts’ reasoning centered on four parts, 1) Their belief that electronic documents are easily modified when collected as evidence, 2) an assumption that detecting alteration or tampering of digital evidence is much more difficult than detecting such things for paper processes, 3) The fallibility of information technology due to their general understanding of plausible security threats, and 4) The specialized knowledge required to capture, preserve, and present digital evidence. While the technical understandings embedded within the high court's articulated reasoning can be considered somewhat out of date, their caution is warranted. Good practice for digital forensics is not universally established globally across all judicial and political contexts. Combined with the short windows during which election disputes are litigated, the evidentiary chain of custody, integrity, and applicability can be challenged and can be a complicating factor in its own right. The chain of custody of the evidence is critical in proceedings for both digital and physical evidence. IFES’ Election Investigations Guidebook states that “election investigators must take care to closely adhere to the SOPs that pertain to the maintenance of a proper chain of evidence during the investigative process. A failure to do so could undermine the integrity of the evidence collected and, ultimately, the quality of the investigation itself.” 59 For traditional evidence, it is a chronological paper trail of when, how, and by whom evidence was handled. But for digital evidence, it may be a challenge to maintain clear records of how data was generated, as well as the chain of custody in the transmission and storage of data to ensure there has not been any unauthorized access. It can also be difficult for a court or other law enforcement body to examine the evidence without compromising the data and without delaying the election process. In Uganda, the Uganda Electronic Transaction Act is applicable to election petitions and regulates the admissibility of digital evidence. In election petition, No. 1 of 2001 in Dr. Kizza Besigye v. Yoweri Kaguta Museveni and the Electoral Commission, the High Court rejected audio recordings and found they were inadmissible. The plaintiff did not submit sworn affidavits in support of the recordings and the court questioned the authenticity and the manner in which the voices were recorded on the CDs. Courts need to establish clear rules to guide parties on how to prove or certify that a document has not been tampered with. In Kenya, the law requires a certificate of an electronic record and the courts have clarified that an affidavit that sets out all "the pre-requisites will suffice if it is deposed by a person in a responsible position in relation to the operation of the electronic device or management of the relevant activities.” 60 India has a similar certification procedure for digital evidence. In India, in Anvar P.K. v. P.K Basheer & Others (2014) 10 SCC 473; and T Karia, A Anand & Bahaar Dhawan, the Supreme Court re-defined the admissibility of electronic evidence in an election petition. The petitioner had sought to rely on electronic evidence and the Supreme Court in its decision “emphasized the need to protect the credibility and evidentiary value of electronic evidence since it was more susceptible to tampering and alteration.” 61 In Ecuador, a recent case brought before the Prosecutor’s Office (Fiscalía General) illustrates the real difficulty of carrying out a computer audit during an ongoing election process without compromising the data or delaying the process. This case raised the question how an electronic database could be examined by law enforcement during IFES Investigations Guidebook (2020), p.118-119. County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others, Civil Appeal (Kisumu) No. 17 of 2015. 61 India, Anvar P.K. v P.K Basheer & Others, (2014) 10 SCC 473; and T Karia, A Anand & Bahaar Dhawan 59 60 23