Why IEBC is cautious about granting Azimio access to its servers - Lawyer Eric Gumbo

The Independent Electoral and Boundaries Commission (IEBC) remains apprehensive about granting the August 9, 2022 presidential election petitioners access to its servers for forensic imaging over concerns it says could interfere with its future operations.

This follows a Supreme Court decree on Tuesday, during a pre-trial conference, ordering the electoral body to, among other things, grant the petitioners access to any server used to capture images of Forms 34C.

IEBC, through lawyer Eric Gumbo, on Wednesday sought to have the court clarify its initial order noting that there was confusion in regards to what it meant when it granted the petitioners access to the servers.

"We have had interactions with my colleagues who are handling the scrutiny and they give us the indication that there has been very good progress so far but there is one specific issue which they would like to have clarification from this court and that arises from the use of the word ‘forensic image’,” said Gumbo.

"The applicants appear to be interpreting that to mean an opportunity to get the image of the entire server…now that is causing a bit of a concern because then it means if they have an image of the server, technically, they would have gotten access to everything contained in that server.”

Should the Supreme Court nullify the results of the presidential polls and order a fresh election, Gumbo argued, then the IEBC will not be able to conduct the exercise since it will allegedly have lost full access to its servers.

"It then particularly concerns the commission because if by chance there was an order for a repeat election and you don't have that infrastructure, it then means that that election may not be conducted," he said.

"The other concern is the potential breaches that might be in relation to third-party licenses that are contained and so therefore it really is important that we get clarity on that question so that the exercise can proceed smoothly.”

While insisting that IEBC had yet to conform to the order granting them access to the servers, lawyer Paul Mwangi, who is representing Raila Odinga in the petition, urged the court to specifically give the order to a specific official at the commission, citing that no one had taken responsibility of executing it.

"… what I meant had been agreed on was that the part of the server that was supposed to be forensically imaged was going to be cloned so that there is no access to that, and that had already been agreed on, but when it came to implementing it there were always new arguments," he said.

"There was nobody at IEBC to whom the order was directed to and who was responsible for ensuring that these matters are done. I went to the IEBC offices during our lunch break, the CEO says this but he doesn't talk, other tech people come and argue with other members of the political parties and that is the confusion going on.”

Justice Isaac Lenaola however told Mwangi and his team that the Supreme Court would issue a way forward on the same on Thursday after going through a report from its own in-house team.

"The issue of order number two had been resolved by the question of cloning as opposed to the security question of forensically imaging the server. So what we gathered, and that is what I said when we came back from lunch, was that there is progress," he said.  

"Any concerns that this team will have will then be presented to us tomorrow having also gotten a report from our team."

Meanwhile, IEBC - in a tweet on Wednesday evening - confirmed that all parties have been allowed access to the servers and the scrutiny process is ongoing as ordered by court.