1. First to appreciate the tenor & meaning of the 10 pages advice by CJ Maraga to H.E UHURU, we have to decipher into Maraga's judicial philosophy or lack of it as a judge since he joined the judiciary in 2003. We have to appreciate that CJ Maraga has no KNOWN judicial philosophy
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
2..in the traditional sense of the word. In 17 years on the Bench Maraga hasn't espoused a theory of law that can help us pigeon hole him in any known legal school of thought. He camouflages the lack of legal philosophy with drama. He is a drama queen in the classical sense. As
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
3...in 2017 when he nullified the Presidential election, Maraga compensates his lack of sound grounding on the law by making controversial decisions that resonate with WANJIKU. He thus build his reputation not with the students of law, legal scholars or practitioners but with the
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
4...the man/woman on the street. Today's advisory note to the President should be appreciated in that context.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
5. Before I go to the merits and demerits, let explain the STATUS the CJ held in delivering the advice. First, the CJ sits only in one court, as the President
6...of the Supreme Court. This wasn't a judicial decision of a court of law. The CJ was not even performing an administrative function that required him to interrogate dialectical or competing claims and then render a decision.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
7. The CJ under Article 261(7) permforms
a "Courier service".He relays message from the High Court to the President. He advices the president as a "messenger", a courier of the High Court decision and not by writing an opinion. The advice is not "substantive", the advice is "procedural" as to what High Court ruled under
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
8...Article 261(6)(b). The advice is "FORM" not "CONTENT". Maraga has committed a constitutional error when he analysed and rendered a legal opinion on the matter instead of transmitting the message from the High Court to the President. Then we have use of the modal verb "shall"
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
9. in Article 261(7).Does the verb "shall" mean the President "Must".Only a first year law student or my friend @DonaldBKipkorir will make that elementary mistake. In this CONSTITUTIONAL context the verb "Shall"means "May".So the President has absolute discretion to ignore, shelf
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
10...or take sometime before he decides what to do...an ADVICE by its very nature cannot compel one to take a given route...he can decide on a number of actions or options
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
11. Which brings to an important legal issue. Since the CJ was a messenger of the High Court can his
Conduct in the manner he handled the message be subjected to constitutional judicial review? Absolutely. The CJ's actions fall under the supervisory jurisdiction of the High Court. Article 10 is also very important in this regard. A number of options are to open to aggrieved
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
Parties.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
12. The CJ is guilty of "jurisprudential naivete". God forbid but if Uhuru disbands parliament and we go for parliamentary elections, a vicious circle and endless circus kicks in under Article 261(8).a parliament of same male:female ratio will go through the same process
13. So what are the options. One, the President has no obligation to dissolve parliament. A transmitory advice from one body to the other can never trigger mandatory consequences. Second, the President taking into the account Maraga's past must see him as a "JUDICIAL ANARCHIST"
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
14...Maraga takes the law too literal not as a result of philosophical disposition but because a deeper and sound reflection is beyond him. Just like in 2017 Maraga plants chaos & mayhem. Third, parliament must seek a constitutional judicial review both against the CJ and Uhuru.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
15...Uhuru can be stopped by the High Court. Four, Parliament must make an election and sue the President alone, stopping him from acting on the contaminated advice by the CJ.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
16. Lastly, Uhuru in line with my legal opinion must tell Kenyans that he has taken note of Maraga's
Advice but elects to shelf it because he takes the view that the more considered views of the GRAND MULLA are much superior to that of MARAGA'S. @StateHouseKenya @dkmaraga
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
EPILOGUE. Where does Maraga's advice leave bbi and can parliament take any step in light of today's events? Of course if Uhuru wrongly and regrettably goes against my legal opinion, the bbi story is over as we will go to elections. But if he goes with my
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
Opinion does it mean that parliament can play any role in the bbi process? I'm of the view that considering the cloud of constitutional uncertainty and doubts created by Maraga's advice, Parliament will be a LIMPING institution that will lack the POPULAR LEGITIMACY to participate
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
In constitutional re-engineering of Kenya. It must avoid weighty process of constitutional making during the coming years and limit itself to statute legislation as of necessity..bbi with all maneno facing it can't be sanitised by a LIMPING parliament...Good night..People...
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
I think Ahamednasir likes to use a lot legal jargon and technicalities of which I think just create nothing but smoke. Has he ever won a substantial constitutional case or he just yaps by writing yards of nonsense.
I think Ahamednasir likes to use a lot legal jargon and technicalities of which I think just create nothing but smoke. Has he ever won a substantial constitutional case or he just yaps by writing yards of nonsense.
I think Ahamednasir likes to use a lot legal jargon and technicalities of which I think just create nothing but smoke. Has he ever won a substantial constitutional case or he just yaps by writing yards of nonsense.
The Grand Mullah is a backstage lawyer. People need him when their cases have to be settled with the judge in the office and not in the courtroom. Good case is when he represented the Jubilee party in the controversial 2017 presidential election. The man had nothing to tell the court apart from personal attacks on the NASA presidential candidate. No wonder Jubilee lost the case.
Kadudus , Patel , Kplato and all ODM supporters beef with AA is simply coz he has represented Jubilee thrice against the cases of ODM and Raila and was able to win twice and in the process exposed Raila and ODM for who they are . He is a Known Jubilee/Ruto supporter hence the mudslinging .
AA made history as one of the few layers during Nyayo era to attack Judiciary of being corrupt when no one could . When NARC came to power he lead The Judiciary overhaul , now that was historic .
And yes Ahmednasir was instrumental in the appointment of many Judges after 2003 Judicary overhaul Including Maraga who he abhors and could be the reason some people think he is corrupt .
Pundit do you know your clay god Mobutu has no party to face elections. He need to quickly rebrand Koigi Chama cha Mwananchi in case elections are called.
I agree with Grand Mulla - Maraga is a drama queen.
1. Uhuru can ignore CJ's advice.
2. Parliament can run to High Court, get a stay, and the hearing/appeals will spiral to SCORK whose determination would be final.
3. The stay in 2 above would make Parliament legitimate in the interim.
4. During the interim in 3, Parliament can pass the gender bill, or alter the 1/3 clause(s).
5. BBI is a beneficiary of this situation - as the best way to comprehensively address this and other issues.
Uhuru has just been handed a big lever IMO. He can carry out many [rogue] acts as Parliament is lameduck yet he and the courts are not.
It okay to support Raila but do not to act like a fool even in nondescript forum like this.
What did you want Maraga to do.
He has tried to meet AG and two speakers before.
Parliament has been given 10yrs - it was suppose to be 5yrs. They have had 3 debates - and nothing - and there is none on the horizon.
He has received six petitions.
The constitution he swore to upheld requires him to advice the president to disband parliament.
Now ball is in Uhuru's hand.
He can decide to act today or delay.
Parliament can go to court. Petitioners who wanted parliament disbanded can go to court.
Then court will issues orders...against their boss the CJ :) That is not possible.
High court in fact already ruled on this I belief - and gave parliament deadline - which they have flouted.
Only way out is for parliament to meet and pass gender bill tomorrow.
Then can promise women even 50% of all seats.
And then immedately begin the process of amending the katiba and that law.
You cannot cure illegality with another illegality.
First pass gender bill rendering Uhuru decision null and void...and parliament cease being in abeyance of the constitution.
Then fix constitution...using BBI or whatever. Hopeful Ndii BASIC STRUCTURE of constitution that is not ammendable is not part of this.
It look likely to be at the core of constitution - and is not ammendable - unless entire katiba is overhauled.
But anything parliament does from now on unless to pass that gender bill is NULL AND VOIDI agree with Grand Mulla - Maraga is a drama queen.
1. Uhuru can ignore CJ's advice.
2. Parliament can run to High Court, get a stay, and the hearing/appeals will spiral to SCORK whose determination would be final.
3. The stay in 2 above would make Parliament legitimate in the interim.
4. During the interim in 3, Parliament can pass the gender bill, or alter the 1/3 clause(s).
5. BBI is a beneficiary of this situation - as the best way to comprehensively address this and other issues.
Uhuru has just been handed a big lever IMO. He can carry out many [rogue] acts as Parliament is lameduck yet he and the courts are not.
The high court can block CJ's advisory to PORK. He did not act as SCORK in this instance so he can be overruled by a mere judge - then CoA, then SCORK. He is just a state officer same as PORK, AG, IG, etc.
Your logic is faulty: if Parliament cannot pass bills hows does that exempt the gender bill? Parliament is not illegitimate unless and until actually dissolved by PORK. It can still act but is only politically lameduck - crisis of confidence or uncertainly - same as say retiring PORK. An ironic twist of fate cause we thought it Uhuru who would be lameduck.It okay to support Raila but do not to act like a fool even in nondescript forum like this.
What did you want Maraga to do.
He has tried to meet AG and two speakers before.
Parliament has been given 10yrs - it was suppose to be 5yrs. They have had 3 debates - and nothing - and there is none on the horizon.
He has received six petitions.
The constitution he swore to upheld requires him to advice the president to disband parliament.
Now ball is in Uhuru's hand.
He can decide to act today or delay.
Parliament can go to court. Petitioners who wanted parliament disbanded can go to court.
Then court will issues orders...against their boss the CJ :) That is not possible.
High court in fact already ruled on this I belief - and gave parliament deadline - which they have flouted.
Only way out is for parliament to meet and pass gender bill tomorrow.
Then can promise women even 50% of all seats.
And then immedately begin the process of amending the katiba and that law.
You cannot cure illegality with another illegality.
First pass gender bill rendering Uhuru decision null and void...and parliament cease being in abeyance of the constitution.
Then fix constitution...using BBI or whatever. Hopeful Ndii BASIC STRUCTURE of constitution that is not ammendable is not part of this.
It look likely to be at the core of constitution - and is not ammendable - unless entire katiba is overhauled.
But anything parliament does from now on unless to pass that gender bill is NULL AND VOIDI agree with Grand Mulla - Maraga is a drama queen.
1. Uhuru can ignore CJ's advice.
2. Parliament can run to High Court, get a stay, and the hearing/appeals will spiral to SCORK whose determination would be final.
3. The stay in 2 above would make Parliament legitimate in the interim.
4. During the interim in 3, Parliament can pass the gender bill, or alter the 1/3 clause(s).
5. BBI is a beneficiary of this situation - as the best way to comprehensively address this and other issues.
Uhuru has just been handed a big lever IMO. He can carry out many [rogue] acts as Parliament is lameduck yet he and the courts are not.
Filing a case to relitigate the issue would be STRUCK OUT on 3 grounds. First, it would be RES JUDICATA (a matter already settled by judgment). Second, it would be a COLLATERAL ATTACK on the valid Orders. And third, the petitioner would be suing the CJ who isn't a party.
— Dr. Miguna Miguna (@MigunaMiguna) September 22, 2020
This is the sole constitutional remedy provided for the failure and/or refusal by parliament to enact constitutionally required legislation. Perhaps because it is a last resort, the language in Article 261(7) is mandatory for both parties. Neither the chief justice nor the president is granted any discretion; nor incidentally, does it require the chief justice to be petitioned to act.
RV - this your usual fake punditry.
Judge cannot declare parliament nor PORK nor judiciary unconstitutional. Cause those are co-equal arms of GoK. Once PORK has been sworn in - you must impeach him as the only recourse - it why Kibaki swear himself at night - now new katiba only D/CJ can swear in PORK it forestall crisis.
This redux nonsense of "governor cannot be suspended from office" - the beauty of legal issues is they are not horizon like MAD. In few days it will be resolved.
They declared Uhuru win null and void. Judiciary has powers. That is why Moi used to control it. Now a judge can throw anything anywhere. For example Mumbi just killed devolution with her naivety.
They are equal arms of gov. Uhuru does not enjoy supreme powers.
Get used to that. Maraga just about started.RV - this your usual fake punditry.
Judge cannot declare parliament nor PORK nor judiciary unconstitutional. Cause those are co-equal arms of GoK. Once PORK has been sworn in - you must impeach him as the only recourse - it why Kibaki swear himself at night - now new katiba only D/CJ can swear in PORK it forestall crisis.
This redux nonsense of "governor cannot be suspended from office" - the beauty of legal issues is they are not horizon like MAD. In few days it will be resolved.
The katiba expressly empower SCORK (not CJ) to nullify elections within 14 or some limited days. Right now even if you discover Uhuru rigged - you can only impeach him - cause the window that give SCORK power passed.
What stop Maraga or courts from declaring the JSC list automatically sworn in despite Uhuru refusal to swear them? 8) Uhuru has ignored 4 court orders I think - and 14 days given to swear them lapsed eons ago.
Parliament will not be declared illegal - dream on - that Ndii naivety of katiba cannot be amended. It akin to declaring judiciary or executive illegal. Overriding public interest is to avoid crisis - so Omtata NGOs will be ignored. You go to elections- fewer women come back - then what? Parliament either passes the gender bill - or referendum - otherwise forget 1/3. The horse bolted in Naivasha when MPs fixed women reps to 47 instead of pro-rata nominations as CoE wanted.
"Parliament is illegal" from judge not happening.They declared Uhuru win null and void. Judiciary has powers. That is why Moi used to control it. Now a judge can throw anything anywhere. For example Mumbi just killed devolution with her naivety.
They are equal arms of gov. Uhuru does not enjoy supreme powers.
Get used to that. Maraga just about started.RV - this your usual fake punditry.
Judge cannot declare parliament nor PORK nor judiciary unconstitutional. Cause those are co-equal arms of GoK. Once PORK has been sworn in - you must impeach him as the only recourse - it why Kibaki swear himself at night - now new katiba only D/CJ can swear in PORK it forestall crisis.
This redux nonsense of "governor cannot be suspended from office" - the beauty of legal issues is they are not horizon like MAD. In few days it will be resolved.
The Grand Mullah is a backstage lawyer. People need him when their cases have to be settled with the judge in the office and not in the courtroom. Good case is when he represented the Jubilee party in the controversial 2017 presidential election. The man had nothing to tell the court apart from personal attacks on the NASA presidential candidate. No wonder Jubilee lost the case.I think Ahamednasir likes to use a lot legal jargon and technicalities of which I think just create nothing but smoke. Has he ever won a substantial constitutional case or he just yaps by writing yards of nonsense.
You're not any different from a Kondole woman in your lack of reasoning. There are checks and balances. Uhuru might have emasculated the police and dpp which are independent - but judiciary has proven tough. He can sit on the judges - but he aint appointing any. He can refuse to obey court orders - but they will remain - and eventually like everything else - they will come to bite.The katiba expressly empower SCORK (not CJ) to nullify elections within 14 or some limited days. Right now even if you discover Uhuru rigged - you can only impeach him - cause the window that give SCORK power passed.
What stop Maraga or courts from declaring the JSC list automatically sworn in despite Uhuru refusal to swear them? 8) Uhuru has ignored 4 court orders I think - and 14 days given to swear them lapsed eons ago.
Parliament will not be declared illegal - dream on - that Ndii naivety of katiba cannot be amended. It akin to declaring judiciary or executive illegal. Overriding public interest is to avoid crisis - so Omtata NGOs will be ignored. You go to elections- fewer women come back - then what? Parliament either passes the gender bill - or referendum - otherwise forget 1/3. The horse bolted in Naivasha when MPs fixed women reps to 47 instead of pro-rata nominations as CoE wanted.
"Parliament is illegal" from judge not happening.They declared Uhuru win null and void. Judiciary has powers. That is why Moi used to control it. Now a judge can throw anything anywhere. For example Mumbi just killed devolution with her naivety.
They are equal arms of gov. Uhuru does not enjoy supreme powers.
Get used to that. Maraga just about started.RV - this your usual fake punditry.
Judge cannot declare parliament nor PORK nor judiciary unconstitutional. Cause those are co-equal arms of GoK. Once PORK has been sworn in - you must impeach him as the only recourse - it why Kibaki swear himself at night - now new katiba only D/CJ can swear in PORK it forestall crisis.
This redux nonsense of "governor cannot be suspended from office" - the beauty of legal issues is they are not horizon like MAD. In few days it will be resolved.
And you are just Miguna harebrained empty coat. Only MPs can impeach PORK. Only PORK can swear judges or dissolve parliament. Lameduck parliament obviously means uncertainty - but not illegal - Maraga already did that damage
But Uhuru can only stall - buy time - otherwise constitution doesn't give him power - he is conveyor belt. He can only waste time. He need to appoint the judges. There is no other way around it. He needs to disband parliament if they cannot quickly enact gender bill.And you are just Miguna harebrained empty coat. Only MPs can impeach PORK. Only PORK can swear judges or dissolve parliament. Lameduck parliament obviously means uncertainty - but not illegal - Maraga already did that damage
Actually Uhuru can ignore the advice altogether, stall upto 2022 elections or call referendum - because MPs and elections already failed many times to pass gender cap.
Basically among 1) MPs pass gender bill by vote, 2) fresh elections or 3) referendum - it no-brainer which method is practical and which can cause crisis. National interest is big overriding factor that guide PORK besides Maraga or Omtata opinion.
The only thing not sueable in all that is president acting - otherwise I can sue if 1) doesn't meet the constitutional terms 2) the referendum is a process - not an event - you don't just call for a referendum - there is an elaborate procedure - for now parliamentary route is bound to have issues - so only option is to go popular way - collect 1M signatures .
Actually step one is to come up with draft bill - what exactly do you want to ammend. Realistic because it's long process that can be taken to court any time - it not feasible.
So" Robinas punditry" says The President can just wake up and call for a referendumn , what about the 1M signatures , what about county assemblies endorsments , what about framing of the question .
Robina need to learn to ask questions if she is not sure of something and not concluding with affirmation.
RV is correct any transaction by parliament will be deemed illegal and can be challenged in courts as unconstutional.
This also means halting government in cases like bugedtry etc.
Easiest route is MPs pass gender bill obviously - already failed 10X
Elections - unknown outcome that easily spin into crisis - if MPs come back with fewer women. Already failed 2X. Possible crisis/deadlock makes elections the worst option
Referendum is murky with Omtatas/Aukots/Ndiis but practical - can have guaranteed outcome. Yes - entrench women quota or No - scrap the cap for parliament.The only thing not sueable in all that is president acting - otherwise I can sue if 1) doesn't meet the constitutional terms 2) the referendum is a process - not an event - you don't just call for a referendum - there is an elaborate procedure - for now parliamentary route is bound to have issues - so only option is to go popular way - collect 1M signatures .
Actually step one is to come up with draft bill - what exactly do you want to ammend. Realistic because it's long process that can be taken to court any time - it not feasible.
Have you ever read Kenya constitution or at least law 101?
The election of the new parliament is NOT expected to solve the gender issues.
The new parliament will come and pass the gender legislation so the next election - 1/3 of parliament will be women.
All they need to do now is pass some gender bill. It doesn't have to be implemented pronto.
They have only failed because they thought nobody will dare disband parliament. Now you'll see them pass some gender bill. They know they are at mercy of Uhuru now....and they won't like it.Easiest route is MPs pass gender bill obviously - already failed 10X
Elections - unknown outcome that easily spin into crisis - if MPs come back with fewer women. Already failed 2X. Possible crisis/deadlock makes elections the worst option
Referendum is murky with Omtatas/Aukots/Ndiis but practical - can have guaranteed outcome. Yes - entrench women quota or No - scrap the cap for parliament.The only thing not sueable in all that is president acting - otherwise I can sue if 1) doesn't meet the constitutional terms 2) the referendum is a process - not an event - you don't just call for a referendum - there is an elaborate procedure - for now parliamentary route is bound to have issues - so only option is to go popular way - collect 1M signatures .
Actually step one is to come up with draft bill - what exactly do you want to ammend. Realistic because it's long process that can be taken to court any time - it not feasible.
I don't need to read law 101 to know this is rusty legalese.