Mwangi, Counsel for the petitioners, went as far as to submit that elections
are not a political process, but a legal one. That the Court should
concentrate on examining the legal process in the conduct of elections, as
opposed to the political process.
[371] It is our view however, that elections, are all these things. None of
the factors highlighted by the parties can be viewed in isolation. For by
doing so, we run the risk of cannibalizing a sovereign process. Elections are
the surest way through which the people express their sovereignty. Our
Constitution is founded upon the immutable principle of the sovereign will
of the people. The fact that, it is the people, and they alone, in whom all
power resides; be it moral, political, or legal. And so they exercise such
power, either directly, or through the representatives whom they
democratically elect in free, fair, transparent, and credible elections.
Therefore, whether it be about numbers, whether it be about laws, whether
it be about processes, an election must at the end of the day, be a true
reflection of the will of the people, as decreed by the Constitution, through
its
hallowed
principles
of
transparency,
credibility,
verifiability,
accountability, accuracy and efficiency.
[372] It is in this spirit, that one must read Article 38 of the Constitution,
for it provides inter alia, that every citizen is free to make political choices,
which include the right to “free, fair, and regular elections, based on
universal suffrage and the free expression of the will of the electors…”. This
“mother principle” must be read and applied together with Articles 81 and
86 of the Constitution, for to read Article 38 in a vacuum and disregard
other enabling principles, laws and practices attendant to elections, is to
Presidential
Petition
No.
1
of
2017
161
|
P a g e
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