Judges want law changed to give more time to presidential petition

Supreme Court Judge Njoki Ndung'u speaks during the Annual Judges Conference at the Whitesands Beach Resort in Mombasa on August 24, 2016. Judges want the Constitution amended to allow the Supreme Court more time to hear and determine presidential petitions. PHOTO | KEVIN ODIT | NATION MEDIA GROUP

What you need to know:

  • Justice David Maraga noted that the 14-day limit rule was catastrophic in dealing with presidential petitions.
  • Supreme Court Judge Smokin Wanjala said there was a need for a comparative approach in interpreting the constitution.
  • According to him, interpreting the Constitution should be a continuous process.
  • Justice Wanjala noted that as judges, they have to continue being innovative.

Judges want the Constitution amended to allow the Supreme Court 14 more days to hear and determine presidential petitions and write its judgments.

Justice David Maraga, speaking on the sidelines of a judges' colloquium in Mombasa on Tuesday, noted that the 14-day limit rule was catastrophic in dealing with a presidential petition.

“If you calculate the time from the filing of such a petition and you are required to allow time for serving the same and conferencing, you will notice that the Supreme Court ends up having only five days to hear and write its judgment,” he said.

According to Justice Maraga, the judgment in a presidential petition is important and adequate time should be allowed when writing it because it forms the precedent for future judgments, academic studies and procedural adoptions in other courts internationally.

He called for an amendment to extend the period for a further 14 days so that the Supreme Court has 28 days from the time a petition is filed.

“This is not limited to Kenya. In other countries judges are allowed a period of 15 days from the end of the petition hearing, which is basically what we are asking for here,” he said.

MORE PETITIONS ANTICIPATED

On the 2017 general elections, Justice Maraga said their expectation was that there would be an increase in the number of petitions especially from those vying for ward representative and gubernatorial seats.

“We envisage these positions will be hotly contested because Kenyans have now understood the trappings of power that go with [elective] positions,” he added.

Earlier, Supreme Court Judge Smokin Wanjala said there was a need for a comparative approach in interpreting the Constitution critically without adulterating its meaning.

KENYAN COMMON LAW

In his view, the development of the law through local jurisprudence was necessary as propagated by the late Prof Okoth Ogendo, who kept saying there was a need to develop Kenyan common law.

“That need is now and this will be imminent from how we creatively interpret the Constitution even when showing differences [with] other jurisdictions,” he said.

According to Justice Wanjala, interpreting the Constitution should be a continuous process.

Saying there are certain inevitable principles and values to guide the Judiciary, he noted that as judges, they have to continue being innovative.

“You might find 20 years from now, this Constitution [could take] a very different life because of how we interpret it,” he said, adding that they have to navigate through the constitutional language without necessarily changing the meaning or changing the text.