J.
CONCLUSION
[389] In this judgment, we have settled the law as regards Section 83 of
the Elections Act, and its applicability to a presidential election. We have
shown that contrary to popular view, the results of an election in terms of
numbers can be overturned if a petitioner can prove that the election was
not conducted in compliance with the principles laid down in the
Constitution and the applicable electoral law. Never has the word ‘OR’ been
given such a powerful meaning. Why did we do that?
[390] We did so because as Judges we have taken an oath (as advocates
first and as Judges later). In the two oaths, the fundamental words are
fidelity to the Constitution without fear or favour. The constitutional
principles that we have upheld in this judgment were embedded and
became a critical part of our electoral law. The Legislature in its wisdom
chose the words in Section 83 of the Elections Act and in keeping to our
oath, we cannot, to placate any side of the political divide, alter, amend,
read into or in any way affect the meaning to be attributed to that Section.
[391] As for the IEBC, all we are saying is that, the constitutional mandate
placed upon it is a heavy yet, noble one. In conducting the fresh election
consequent upon our Orders, and indeed in conducting any future election,
IEBC must do so in conformity with the Constitution, and the law. For,
what is the need of having a constitution, if it is not respected?
[392] Having taken note of Mr. Nyamodi’s submissions, which appeared to
suggest that IEBC had put in place a complimentary system for the
transmission of results; a system that was neither simple nor known to the
petitioners, we hereby direct that in conducting the fresh election IEBC
Presidential
Petition
No.
1
of
2017
170
|
P a g e
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