64 Constitution under Article 10 of the Constitution...whereas public interest is a factor to be considered by the Court in arriving at its decision, where the alleged public interest is not founded on any legal provision or principle and runs contrary to the Constitution and the law, such perceived public interest will not be upheld by the Court…Consequently, any alleged public policy or interest that is contrary to the rule of law cannot be upheld...Whereas the Court agrees with the IEBC that it owes Kenyans a duty to ensure that unnecessary obstacles are not permitted to prevent the IEBC from preparing and th carrying out the general elections of 8 August 2017, this Court’s mandate is to ensure that the elections are conducted in accordance with the Constitution and the law, and will not allow itself to be a rubberstamp for a process that is clearly flawed and whose result is unlikely to meet the constitutional and legal threshold. 3.4.6 With regard to the question of public participation in procurement of election material, the Court of Appeal has clarified that, as a general principle, public participation is a mandatory requirement in all procurements by a public entity (IEBC v National Super Alliance (NASA) Kenya & 6 Others, Nairobi Civil Appeal No. 224 of 2017). The mode, degree, scope and extent of public participation is assessed on a case-by-case basis. It is critical that there be reasonable notice and reasonable opportunity for public participation, with a realistic timeframe. The absence of a legal framework for public participation is not an excuse for a procuring entity or a State organ failing to undertake public participation if required by the Constitution or law (IEBC v National Super Alliance (NASA) Kenya & 6 Others, Civil Appeal 224 of 2017). 3.4.7 The Court, however, stated that there are exceptions to public participation in the procurement process and one such exception relates to direct procurement. The Court, at paragraph 185 of the judgment, held as follows: In our view, subject to satisfying the requirements for alternative procurement methods (being the conditions stipulated in Sections 103 and 104 of the Public Procurement and Asset Disposal Act, 2015) direct procurement is constitutional. The trial court made a finding that there must be public participation before a decision to use direct procurement is made. Our reading of Sections 103 and 104 of the Public Procurement and Asset Disposal Act, 2015 and Article 227 (1) does not impose a mandatory requirement for public participation prior to using or adopting or making the decision to adopt direct procurement. Section 103 (2) of the Public Procurement and Asset Disposal Act, 2015 does not provide for public participation as one of the conditions to be satisfied prior to adopting direct procurement. 3.4.8 An election court may recommend the investigation and possible prosecution of persons involved in procurement irregularities, especially where such irregularities lead to the failure of the technology employed in the conduct of an election (Raila Odinga v IEBC & 3 Others, Supreme Court Presidential Petition No. 5 of 2013). In view of the decision of the Supreme Court in Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Petition No. 1 of 2017, irregularities in the procurement of electoral technology and materials are not sufficient, in and of themselves, to justify the nullification of an election; the irregularities have to be shown to have affected the result. 3.5 Suitability and Eligibility of Candidates 3.5.1 3.5.1.1 Suitability Article 25 of the ICCPR entitles every citizen, without distinction and without unreasonable restrictions, to participate in public affairs, to vote and be elected, and to have equal access to the public service. Any conditions which apply to the exercise of the rights protected by BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION