breach of the law, however grave, is not by itself sufficient to invalidate an
election, where it is not shown that the breach negated the voters’ intent.
[122] Counsel for LSK argued that the application of Section 83 is limited
in content and scope and only applies where the validity of an election is
restricted to irregularities. He thus sought to distinguish between an
illegality and an irregularity by contending that the former constitutes a
violation of the Constitution or a substantive statutory or common law
provision. Accordingly, it was urged that Section 83 has no application
where there is a violation of the Constitution or a substantive provision of
election laws and Regulations. That it was only applicable where the
validity of an election does not concern a violation of the Constitution or
substantive statutory provision, but is applicable where there are minor
irregularities which do not affect the overall outcome of the election.
Counsel urged that giving the provision a different meaning leads to an
absurdity that it is acceptable to violate the Constitution or substantive
statutory law provided that it cannot be established how those violations
affected the results.
[123] Further, it was submitted on behalf of the Society that the repealed
Constitution did not have the equivalent of Articles 81 and 86 of the
Constitution 2010 and therefore any interpretation of Section 83 cannot
make sense in that context because the said Section was enacted before
2010. That fact alone would mean that the regulation of what the nature
and quality of election was, should be left to statute without any reference
to the Constitution. However, the Society urged that in constitutionalizing
what constitutes a free and fair election, the 2010 Constitution created
minimum and non-negotiable thresholds which the process and substance
Presidential
Petition
No.
1
of
2017
49
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