Article one of the Constitution states that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution either directly or through their democratically elected representatives.
Direct exercise of sovereign power includes voting in elections or referenda or recall of elected representatives or petitioning courts to remove elected representatives etc.
It also means if elected leaders do not perform their functions in accordance with this Constitution, the people can use constitutional means to demand performance.
The right peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities is one of the means to demand performance.
The primary function of the police is to secure and guarantee protection of citizens and property in Kenya. The Constitution is the supreme law and binds all persons and all State organs at national and county levels of government and provides that no person may claim or exercise State authority except as authorised by the Constitution.
In article three, we are all obliged to respect, uphold and defend the Constitution and any attempt to establish a government outside the Constitution is unlawful.
The import of these provisions is that, President William Ruto was elected and took the constitutional oath of office as the President of Kenya for the next five years and unless he is removed in accordance with Constitution, the sovereign power of the people has been donated to him, in his role as President.
The Constitution clearly spells out the functions of the Executive, Parliament and Judiciary. The Azimio One Kenya leader Raila Odinga contested the presidential election in the Supreme Court and lost, rightly or wrongly. The matter of elections should be behind us now until 2027.
The Constitution guarantees Raila’s team and supporters, the right to peacefully and unarmed, assemble, demonstrate, picket, and present petitions without hindrance, threats, and intimidation and with protection of the police.
The law requires him to notify the police only and whether or not they acknowledge, they have been notified and have an obligation to provide him and his supporters protection and security even if they don’t like him or his supporters.
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The Azimio One Kenya team has given notice of regular demonstrations every week, making various demands. The first is that the server the Independent Electoral and Boundaries Commission (IEBC) used to transmit and declare the winner of Kenya’s 2022 presidential elections be opened. The Supreme Court, due to the limited time within which they must decide on the presidential petition, could only grant limited access.
Other than time constraints, there was no other reason why access to the full server cannot be granted. In fact, in a democracy where transparent, accountable and verifiable elections are conducted, full access to a server is part of the facilities accorded to all candidates.
On September 26th 2022, the Supreme Court while dismissing the presidential election petition filed by the Azimio One Kenya leader, found that the public portal was not compromised and stated that they were satisfied that the KIEMS kits were configured to transmit the results into the IEBC server and that it was easy, with this configuration to trace where the Forms 34A were transmitted from.
They also said the RTS was configured on a Virtual Platform Network (VPN) and the SIM cards locked to a specific polling station with the server configured to accept results only from authorised and properly mapped KIEMS kit.
The SC further stated that the evidence before it showed the KIEMS kits were capable of detecting the legitimacy of the Forms as they would take images using the specific markings identifying the Forms 34A and ensuring that only legitimate Forms were transmitted.
In fact, the Supreme Court said it was impossible for IEBC, its officials, and strangers to tamper with Forms 34A before converting them to the PDF format that eventually appeared on the public portal.
The server appears to be secure and tamper-proof, which means the data showing the President won and with what margin, is bulletproof.
The IEBC should open the server to save the country from demonstrations and fear while the police ensure all of our security and protection without fear or favour.