The Supreme Court’s decision to hold the first sitting of the presidential election petition on Saturday night has evoked debate over religion and call for national duty.
Questions were being raised whether the move was necessitated by Chief Justice David Maraga’s firm stand that he cannot sit in a court session on a Saturday during the Sabbath Day for the Seventh Day Adventist Church.
A notice from the Supreme Court registrar Esther Nyaiyaki to lawyers representing NASA co-principals Raila Odinga and Kalonzo Musyoka, President Uhuru Kenyatta and the Independent Electoral and Boundaries Commission confirmed that the sitting will be held at 7pm.
“Take notice that the date of the pre-trial conference has been fixed on Saturday August 26 at 7pm before the Supreme Court. Kindly note that all counsel appearing before the court should be fully robed,” said Ms Nyaiyaki.
During his interview for the position of Chief Justice, Justice Maraga told the Judicial Service Commission he would not compromise his religion to attend to work on a Saturday.
The CJ said he is a staunch Seventh Day Adventist and would not sit to hear a presidential election petition despite the law allowing the court to sit up to weekends when determining a presidential election dispute.
“It will be very difficult for me to sit on a Saturday to hear a case. I would rather talk with my colleagues in the court to accommodate me and exempt me from sitting if the hearing extends to a Saturday,” said Maraga.
Members of the SDA church are strong adherents to their doctrine of Sabbath Day, which states that their day of worship starts from Friday sunset to Saturday sunset.
The faithful obey the Fourth Commandment in the Old Testament which states that Christians should keep the Sabbath Day holy and should not engage in any work.
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The SDA doctrine does not allow its members to within the 24 hour period begging Friday 6pm to Saturday 6pm.
The CJ stated that only a matter of life and death can make him miss church service on Saturday, like an accident happening while he is on the way to church in which he will stop to help the victims.
Maraga seemed to have lived and fulfilled his promise not to sit on a Saturday during the Sabbath, although sources within the Judiciary denied that the first sitting of the pre-trial conference was a result of the CJ’s religious belief.
“The decision to begin the pre-trial conference at 7pm was not because of Justice Maraga’s religious conviction but because it was the only convenient time for all the Supreme Court Judges. It has nothing to do with his faith,” said the judicial officer who did not want to be named.
The officer however confirmed that the CJ, who is also the president of the Supreme Court will go to church as usual before reporting to the court at 6pm to prepare for the 7pm pre-trial conference.
Lawyer John Swaka, who is a member of the Kenya Christian Lawyers Fellowship, however stated that being a Christian should not deter someone from doing a national duty.
“The presidential election petition is a scenario which has held the country hostage. As a Christian, you may have your own personal persuasion but one has to remember that they took an oath of office which puts duty first before religion,” said Mr Swaka.
However, the lawyer said it was not bad for the judges to sit on Saturday night as long as they agreed among themselves to accommodate each other, although the decision meant they will have to work overtime to conclude the petition within reasonable time.
The decision to hold the court session at night may also not resonate well with the public who are likely to have negative perception of the night sitting.
“The Supreme Court may mean well and be justified to have the sitting at night but they should be careful that it does not create negative perception of something fishy going on. People should view the Judiciary as transparent to increase public confidence,” said a member of the public.
During preparations to handle election disputes, Maraga had stated that he will allow all judicial officers to work outside official hours including at night and throughout the weekends to beat the strict deadlines.
The Constitution states that a presidential election at the Supreme Court must be heard and determined within 14 days from the date of filing.
Since NASA filed their petition last Friday, it means the judges must hear the case within the next six days and give a verdict on September 1.