THE SECOND AMENDMENT TO THE 2010 CONSTITUTION…

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At this point you cannot envy Justice Maranga’s position. This is after the veteran opposition leader Raila Odinga filed the case against the re-election of President Uhuru Kenyatta on Friday 18th August 2017 as per Article 140 (1) which states that “A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election,” of the Constitution states. The Supreme Court has 14 days to hear and determine the petition. As per the Kenyan 2010 constitution these strict timelines includes Saturday and Sundays. With this in mind the Supreme Court will be forced to work over the weekends.

During the vetting exercise of Judge David Maraga for the post of Chief Justice of Kenya’s and President of Supreme Court, he stated categorical that his faith as a Seventh-day Adventist will not allow him to work on Sabbath if appointed. Maraga told the Judicial Service Commission, which is responsible for nominating Supreme Court candidates to the president, that he would not enter the courtroom on Sabbath even in a presidential election dispute!

Now this has come to pass and the judge who is now the president of the Supreme Court is called to preside on the case. The NASA legal team which had up to two days from the time they filed the case on Friday to serve the respondents (President Kenyatta, the IEBC and its chairman in his individual capacity as the presidential elections returning officer) achieved the fit when they served them on Sunday. The respondents have four days from Sunday 20th August 2017 to file their responses.

The world is now waiting with bated breath whether Maraga will opt out of the hearing of the case or go against his vow and work on Sabbath? It is true to state that Justice Maraga is the most competent Judge for his position having beaten 14 other contestants during the interviews for the job. However the country may not be ready to hear that Justice Maraga will not compromise his going to church on Saturday for work.

His statement during the interview to the Judicial Service Commission that “It would be very difficult for me to sit on a Saturday to hear a case,” still rings into our ears. Yes, the words he said was that it will be ‘difficult’ and not ‘impossible’.
The days are literally flying since the Supreme Court decision must be delivered on September 1 by the seven judges of the court.

So why are all eyes on Justice Maraga and not the other six judges?
This is because of his role as president of the court and presiding judge, and the fact that it is his biggest case yet. Also it is worth to note that Judge Maraga will be the tie breaker should the other six judges tie in their votes.

And since the court was formed primarily for such a petition, it will be baptism by fire for the 14th Chief Justice of Kenya.
Apart from judges Mohamed Ibrahim, Prof Jackton Ojwang’, Dr Smokin Wanjala and Lady Justice Njoki Ndung’u who arbitrated a similar petition in 2013, the CJ, his deputy Lady Justice Philomena Mwilu, and Justice Isaac Lenaola will be their first time to preside over a presidential election petition.
As a staunch Seventh Day Adventist church elder who has in the recent months stamped the authority of the Judiciary against attacks by politicians, will Justice Maraga delegate the hearing to colleagues?
“I would rather talk with my colleagues in the court to accommodate me and exempt me from sitting if the hearing extends to a Saturday,” the furiously independent-minded Justice Maraga once told the JSC.
Does the law allow a judge to hear a case on behalf of the other?
Can he be absent on Saturday 26th August during hearing but appear on 1st September with Judgment?
Those are some of the key questions the country ought to ask!
What do the theologians think? Can we compare this with the healing that Jesus undertook on Sabbath day?
If Maraga was a medical doctor and was forced to attend a dying patient on Sabbath, will this be okay?
Or is it not proper to equate this with medicine? Is the faith of one individual greater than the Nation?
These are the millions of questions that the drafters of the constitution did not for see. Which leads me to my proposal… It is high time we had a second amendment to our beloved constitution to widen the period required in arbitrating on presidential election petition.
How do you go through 25,000 pages evidence and over 40,000 forms 34As in just 2weeks?

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