The question of numbers and their importance in an election will be back in corridors of justice for determination by the Supreme Court.
This is as a petitioner this time queries the low voter turnout during the October 26 repeat presidential election, handing President Uhuru Kenyatta victory.
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The petitioners, Njonjo Mue and Khelef Khalifa, argue the incumbent’s legitimacy as a validly elected leader for the whole country is in question as only 38.8 per cent of Kenyans turned out to vote.
They claim the low turnout in the re-run is a sign the electorate does not want Jubilee government's reign.
According to the petitioners, this year’s presidential vote had the lowest turnout since the coming of multiparty democracy in Kenya.
They claim in 1992, 66.81 per cent voted while in 1997 there was a 88.86 per cent turnout.
In 2002, the number dropped to 57.18 per cent.
The number again spiked in 2007 with 69.09 per cent and in this year’s August 8 election the number grew to 79.49 per cent.
“The voter turnout in the fresh presidential election held on October 26, 2017 is undoubtedly the lowest ever since the introduction of multi-party democracy in Kenya,” the two claim.
The Supreme Court in its majority decision by Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Smokin Wanjala and Isaac Lenaola ruled that numbers did not matter as long as the process was not flawed.
The majority judges reiterated that the procedure through which the president is elected is what matters.
“One, that elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe.
"Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution,” they ruled.
“Elections are not events but processes.”
National Super Alliance claims voters who refused to show up are its supporters and thus wanted Raila Odinga to be president.
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The Opposition argues President Kenyatta failed to get the same number of votes as the electorate lacked faith in his leadership.
But in opposition, ruling party Jubilee argues although the number of voters dropped during the re-run, Mr Kenyatta’s popularity remained the same in all counties that cast ballots.
The party argues all the 19 million voters have a right to vote or not to.
“The allegation on low voter turnout at the fresh presidential election is misplaced and borne out of ignorance or deliberate intention to mislead this honourable court.
"There is a consistent trend both nationally and internationally for turnout at by-elections or repeat elections to be lower than those of the general elections,” the party argues.
Voting is not compulsory in Kenya and there is no minimum threshold for voter turnout save for the constitutional threshold set out in Article 138(4) of the Constitution, says Jubilee.
Uhuru during the August 8 election hearing backed his win with the eight million voters who cast their votes in his favour.
His case before the Supreme Court then was that the majority had their say and thus their will ought to be respected despite hitches in the process.
The Independent Electoral and Boundaries Commission (IEBC) agrees with Jubilee, arguing there is no prescribed number of voters that can be used to measure the validity of an election or securing a seat.
Acting IEBC chief executive Marjan Hussein Marjan in a reply to the petition says: “As voting is not compulsory in Kenya, all the voters do not have to go for the polls.
"As such, no minimum percentage of voters is prescribed for treating an election as valid or for securing the return of a candidate at an election.”