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February 22, 2019

CJ David Maraga and what lies in wait ...

Chief Justice David Maraga. Photo/PSCU
Chief Justice David Maraga. Photo/PSCU

Our Constitution provides in Article 163 that the Supreme Court shall have “exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.”

The framers of the Constitution exclusively granted our Supreme Court original jurisdiction to hear and determine disputes relating to the elections to the office of the President because they concluded there would not be enough time to litigate these issues at lower courts to determine who has been elected president in time to assume office as provided under the Constitution.

Or so one would think; the reality is, it’s not at all clear “hearing and determining” disputes relating elections to the office of president in the traditional and normal sense is what the framers intended; rather, one can make a case the framers simply wanted to provide a process by which the Supreme Court can use its wisdom and whatever little facts and evidence before it to reach a fair and just conclusion as to what the outcome of the elections should be.

Otherwise, the 7 days provided in the constitution to file a petition challenging the election of a president or the 14 days allowed in total for the Supreme Court to dispose of the case is simply not enough time to for the court to “hear and determine” issues of the magnitude such as allegations of massive rigging as was alleged in the various petitions filed in the only challenge we have had under the Constitution of 2010.

We are now coming up to the next general election and one can be as sure of two things as sure as the sun rising in the east and setting in the west and these are: (1) there will be election fraud and (2) the losing candidate other than the sitting president will file a petition to challenge the results.

This means, like now retired Chief Justice Willy Mutunga before him, Justice David Maraga will as our new Chief Justice have as the biggest test and therefore definition of his legacy how he handles the surely to come petition challenging the election of president in 2017.

Asked what his legacy would be after he retired, Dr. Mutunga said he had left behind a Judiciary that was “more independent and more humane, one that defended the Constitution, expanded access to justice and reduced case backlog.”

That may be how the former Chief Justice wishes to be remembered but its more convincing that Mutunga will be remembered as the Chief Justice who presided over the worst decision in our country’s history and one need not be reminded what that decision was.

The irony of it—and this truly puzzled many, was given the nature of how the electorate stood in 2013, especially in terms of voter registration and mobilization, the wisest thing Mutunga would have done was to invalidate the presidential election and have a re-run between now President Uhuru and Raila which few disagree Uhuru would have still emerged the winner in which case Dr. Mutunga and the then new Supreme Court would have lived to its then highly anticipated stature.

That did not happen the onus is now on our newly minted Chief Justice and President of the Supreme Court, Justice David Maraga to elevate the judiciary to an institution where justice can be expected and delivered without the time honored traditions we are all too familiar and have been hoping can be a thing of the past.

The "burden of delivery is high on me as Chief Justice, but I aim to succeed. When we allow institutions to thrive, they will do what is right," Justice Maraga declared upon being sorn.

The single most important test in whether he succeeded in this endeavor will be how the Chief Justice handles the presidential election challenge next year and every indication is, he and his fellow justices will do what is right.

The writer is a legal expert and political commentator based in the United States.

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