By Hesbon O
Well , something has been bothering Kenyans(the public) since last night regarding the audit of IEBC ICT environment pursuant to court order issued by the Supreme Court of Kenya.
This is the understanding of many regarding what SCOK ordered:
A Specific list of documents to be availed and server access to be provided on a read only basis including extract of print out where necessary.
This was to be done in the presence of the representatives of both the petitioner and respondents,1,2&3.
This culminated in 2 reports which were tabled before the court.
The first report addressed IT system access including server and is a 13 page document. With a conclusion that certain levels of access was denied contrary to court orders.
This report however did not share much except to confirm that ACCESS was denied or provided.
It is therefore wrong to deduce anything other than the fact that what was extracted from the exercise was verified and certified by all parties.
On the other hand the other report touched on the verification of forms and it was done in one of the courts (Milimani Law courts ).
What was the outcome ?
A confirmation that access was granted/ or denied in some instances. It did not get to the details of findings arising from the access or verification.
What I expected:-
1. That where access was denied without satisfactory explanation from the respondent, the court would rebuke and order full compliance, failure to which the orders that were to follow may have been to the detriment of the 1st& 2nd respondent.
Infact the courts should have declined listening to counsel of 1st&2nd respondents until full compliance was achieved.
2. The petitioners sought prayers to access servers for specific reasons. They did not get access.
My expectation was that they would go back to court and say access is denied and therefore they may not achieve the objective due to this barrier. Seek to compel the first and second respondent to obey the order.
Thereafter prepare a report pursuant to the access and seek leave of court to file a report of its observation backed by documents prepared and certified by court registrar.
Therefore in my respectful view , the document they introduced in court was right except it was not procedurally brought . Infact all parties should have been allowed to make written submissions on the exercise. With a view to hearing today specifically on the access findings.
That way meaning and value is attached to the exercise so carried out.
As things stand I don’t see any evidentiary value of these reports other than saying, access was granted or access was denied.
In conclusion , the purpose of seeking access was to use the findings to buttress certain points. It’s clear the findings were not permitted, on what basis then was access granted if the findings were unnecessary to the court..
On this I think counsel for the petitioner did an injustice by failing to come out clearly on this matter.