Grand Mullahs Take On Maragas Advice

[Nowayhaha]

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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.

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

— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020

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.
7. The CJ under Article 261(7) permforms

— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020

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
11. Which brings to an important legal issue. Since the CJ was a messenger of the High Court can his

— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020

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.
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

— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020

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.
16. Lastly,  Uhuru in line with my legal opinion must tell Kenyans that he has taken note of Maraga's

— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020

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

[RV Pundit]

Parliament is mortally wounded. As long as that constitution issues has not been resovled - anything it does going forward is illegimitate.  It's NOT properly costitutued without 1/3 of women. End of story. That is elephant in the room.

Way forward is for parliament to find a way to bring 1/3 of women by passing a gender bill.

The rest ni kingereza mingi. The constitution REQUIRES 1/3 of parliament be women. Copy Rwanda.

The easiest way is for parliament to convene and pass the gender bill.

Going to court will result in tears. The constitution IS VERY CLEAR ON THE ISSUE. There is nothing to sue about. Parliament cannot argue with constitution.

How do we get 1/3 women in parliament - we need ideas - but certainly politician girlfriends and wives...will be happy beneficiaries of this.

We can go for lottery - every 1/3 of constitutuencies - will have their seats reserved for women only candidate.  We can also force all political parties to nominate 1/3 of women. How they do this - is their business.

[KenyanPlato]

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.

[patel]

Precisely,  only a lazy mind would entertain that thief masquerading as senior counsel non sense.  Ahmednassir is trash.

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.

[Kadudu]

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.

[Nowayhaha]

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.

He won Jubilee (TNA/URP ) election case against Railas ODM in 2013 .
Remember The Raila Doctrine  -->simply states ...a presidential election can never be declared to have been free and/or fair unless Raila Odinga wins the election."

[Nowayhaha]

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 .

[RV Pundit]

AA became powerful when he had Moi era judges kicked out - and brought in the Maragas with Kiraitu. Then he was LSK chair. And then he became even more powerful when again he was hired in JSC to interview and vet senior judges.

Basically he intimidates judges to rule his way or he will hang them.

That is why he started Nairobi Law Monthly.

At end of the day he is crook working with somalis to launder money or corrupt individuals like likes of Brian Yogo

That is how he transformed from a skinny law lecturer during our time in campus to now a BILLIONAIRE owning 1st community bank - driving 1m dollar cars.

But seeing the odds he had to surmont from Mandera - you gotta love his hustle and struggle.

[RV Pundit]

He has the harvard thing with Kiraitu and others going for them - but generally there are more intelligent lawyers like Fred Ngatia. But generally he get his way through bulldozing things  - he basically threaten the judge to rule his way or he will expose scandal or two. I am sure he has lots of guys working behind the scene to collect dirt on judges.

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.

[RV Pundit]

He has had two opportunities to make the judiciary in his image..2003 and recently in 2010...and judges know he is a fighter who will drag your through the mud if need be ...so many would simply rule his way....except maybe in supreme court...where he cannot intimidate judges...as those are very senior old men mostly. I bet he wins most of cases at high court - by sheer intimidation.

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 .

[Nefertiti]

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.

[Nefertiti]

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.

[RV Pundit]

There are gazillion parties including Kiunjuri Tissue Paper Party of Kenya. Tissue Paper Party will merge with many in rift valley (PDP) - to form a coalition named Hustler Nation. You don't need  a party for that - just a catch name.

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.

[RV Pundit]

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 VOID

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.

[Njuri Ncheke]

Grand mullah is a corrupt no it all somali. Nothing worse like a mjuaji somali, but we need cut him some slack these guys from disadvantaged backgrounds hustle x2 to get to the top.

[Nefertiti]

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 VOID

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.

[RV Pundit]

CJ is the president of the court.There is already a high court ruling on the same.If they file the case the court will dismiss it.This process already left the station...started in lower courts and now all that is left for judiciary to declare parliament illegal if uhuru doesn't dissolve it..upon application of anyone

[Nowayhaha]

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 VOID

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.

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

[RV Pundit]

Beside this has been heard all the way to supreme court.

In 2012, the Supreme Court of Kenya gave parliament until August 27, 2015, to enact legislation to implement the provisions of Articles 27( and 81(b). Despite this, Parliament has failed and/or refused to enact legislation. In March 2017, the High Court once again found that parliament had failed in their constitutional obligations to enact legislation on the gender principle, and gave them 60 days within which to do so. The court further ordered that should parliament fail to enact the legislation during this period, the provision of Article 261 of the constitution applies and any person could petition the chief justice to advise the president to dissolve parliament. Despite all this, parliament did not enact the legislation within the 60 days

[RV Pundit]

 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.