importantly, the Constitution imposes an obligation on the 1st respondent
to ensure that the voting system used is simple, accurate, verifiable, secure,
accountable and transparent. This is meant to avoid the possibility of
manipulation of the system.
[176] The petitioners urged that an election that does not comply with the
constitutional principles results is a usurpation of the peoples’ sovereignty
by false representatives who do not represent the people’s will and who are
not accountable to them. This goes contrary to the essence of Article 4 of
the Constitution, which establishes Kenya as a sovereign Republic. They
urged that Kenya being a Republic, it must conduct itself and its elections
as a true Republic anchored on constitutional democracy.
[177] Supporting the petitioners view, counsel for the 1st interested party
submitted that Section 83 should not be used to white wash all manner of
sins and irregularities which may occur during the electoral process so as to
render them immaterial.
[178] For the 1st and 2nd respondents, it was submitted that noncompliance with the law alone without evidence that the electoral process
or the result had been materially and fundamentally affected was not a
basis for invalidating the electoral outcome. In the 1st and 2nd respondents’
view, the correct interpretation of Section 83 is the one this Court gave it in
the 2013 Raila Odinga case.
[179] Learned Counsel for the 1st and 2nd respondents urged that to give
the Section the interpretation advanced by the petitioners would derogate
Presidential
Petition
No.
1
of
2017
73
|
P a g e