The National Super Alliance (Nasa) has argued that the electoral body should postpone elections if the electronic system fails on polling day.
Submitting before Justices Kanyi Kimondo, Hedwig Ong’udi and Alfred Mabeya on Monday, Nasa, through lawyer Paul Mwangi, said the Independent Electoral and Boundaries Commission (IEBC) has so far failed to put in place a complementary system as required by law.
And in case the electronic system fails on August 8, Section 55(b) of the amended Elections Act allows the IEBC to postpone the elections until a complementary system is put in place. The Act mentions postponement of elections in a constituency, county or ward.
Mr Mwangi, along with James Orengo and Ben Sihanya, argued that previous elections have been compromised by failure of technology.
As a response, he said, Parliament mandated the IEBC to come up with a complimentary system, but not a manual system.
He said the IEBC has not consulted relevant stakeholders or even engaged the public with a view to coming up with the complementary system.
The lawyer said the court can force the agency to comply with a statutory provision, when it fails to do so.
But Jubilee, through lawyers Ahmednasir Abdullahi and Tom Macharia, said Nasa is hell-bent on suppressing the wishes of voters.
Mr Macharia said the failure of Biometric Voter Registration systems and Electronic Voter Identification systems should not be a basis of disenfranchising eligible voters.
Mr Abdullahi said the Nasa petition is meant to declare Section 44(a) of the Elections Act illegal and in effect, legislate through the back door.
He said Mr Orengo, also the Siaya senator, unsuccessfully tried to block Parliament during the debate to amend the election laws in December.
“After failing to stop the process in December. They have now brought a petition raising the same issues. He cannot be allowed to have a second bite of the cherry,” he said.
The IEBC, through lawyer PLO Lumumba, said the commission has adopted regulations to cater for both identification of voters and transmission of results in case the system fails.
He further said that there was public participation in the process of coming up with the regulations and Nasa is misleading the court by stating the opposite.
In a sworn statement, Jubilee Director of Legal Affairs Mary Karen Sorobit says Nasa is trying to legislate its electoral agenda through the court.
“The insistence on using electronic transmission as the only mode of transmission or identifying voters will thus be setting up the country on the reliance of an unreliable, insecure mode of transmission of results,” Ms Sorobit states.
Nasa moved to court to compel the IEBC to exclusively use electronic systems to identify voters and transmit results during the August 8 General Election.
In the petition, the opposition argues that the IEBC is time-barred to come up with regulations establishing a complementary mechanism for the elections as required by law.
It argues that Section 109 of the Elections Act (2011) requires that the mechanism and regulations be put in place with the approval of Parliament at least 60 days before the General Election.
The Judges will issue their decision on July 21.