The case filed by three civil society activists in Supreme Court seeking to have tomorrow’s rerun presidential election postponed failed to take off Wednesday even as it was treated as a matter of urgency.
Postponing the case, Chief Justice David Maraga cited lack of quorum explaining that the Deputy Chief Justice Philomena Mwilu was not in a position to sit in court after Tuesday’s shooting of her driver.
Justice Mohammed Ibrahim, he explained was ill while Justices Jackton Ojwang and Smokin Wanjala were unable to come to the court while Justice Njoki Ndung’u was out of Nairobi and could not get a flight. The only other available judge was Justice Isaac Lenaola but the two could not form a quorum.
The case filed by Khelef Khalifa, Samuel Mohochi and Gacheke Gachihi had been certified as urgent with the Chief Justice directing the trio to file their submissions by 6 pm on Tuesday.
After the adjournment, lawyer James Orengo for NASA was overheard telling a colleague “the State operates in mysterious ways.â€Â
In an interview with KTN, Orengo said: “Our take is that the constitutional order is being overturned.†He noted that IEBC’s replying affidavit was signed by not its chair, Wafula Chebukati, but his deputy Connie Maina whose elevation to that position was gazetted on Tuesday evening, a day before the election, by Mr. Chebukati.
Some lawyers have said the position doesn’t exist in law. According to Orengo, that position is illegal. A bill awaiting presidential assent creates the position of a deputy IEBC chair who can act in case the chair is unable to execute his duties.
Western envoys have urged the president not to assent to it because international best practice dictates that you can change electoral law in the middle of electioneering. “It is clear that the IEBC is operating without the authority of the chairman. He is just a passenger. IEBC is disabled,†he added.
Mr. Orengo said he was surprised that the Chief Justice could not mobilize a quorum and it was not a coincidence.
According to the lawyer, the gazettement of Wednesday as a public holiday was meant to stop the court from sitting. According to Orengo, the shooting of the Deputy Chief Justice’s driver happened when the Chief Justice said they would continue with the case on Wednesday.
Credit: www.standardmedia.co.ke
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