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Supreme Court Does Not Have Constitution Power to Change Election Date!

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Kenya Constitution continues to lift Kenya high up. Kenya Constitution continues to lift Kenya high up.

Kenya Supreme court cannot change the Election date as set by Kenya Constitution 140 (3) that states, “140. (3) If the Supreme Court determines the election of the President elect to be invalid, a fresh election shall be held within sixty days after the determination.”

Kenya Constitution doesn't allow any of its laws to be challenged in any court as per Kenya Constitution 2. (3) “The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.”

The case currently taken to court challenges the validity and legality of constitution law 140 (3) Election date. If the Supreme Court extends the 60 days period set, then the Court can legally also extend the 14 days set for hearing a presidential petition, the 7 days for filing a presidential petition and other fixed dates in the Constitution. 

Kenya Constitution further forbids any person or body establishing anything that will have the force of law in Kenya Constitution article 94 (5), “No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.”

An Election extension by Supreme Court would have the force of law not only of changing date; but, also the force of law of taxing Kenyans. 

Changing of 140 (3) requires a referendum as per Kenya Constitution article 255. (1) “A proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to any of the following matters— (f) the term of office of the President.” 

The Supreme Court by changing 140 (3) without a referedum would also take away Sovereign power as established in Kenya Constitution article 1. (1) “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.”

Only Kenya Constitution 58 of, "State of Emergency," can postpone an Election ordered in 60 days by the Constitution and under terms set in the article 58.  

State of Emergency

58. (1) A state of emergency may be declared only under Article 132 (4) (d) and only when–– (a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared. (2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only— (a) prospectively; and (b) for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.

(3) The National Assembly may extend a declaration of a state of emergency— (a) by resolution adopted— (i) following a public debate in the National Assembly; and (ii) by the majorities specified in clause (4); and (b) for not longer than two months at a time.

(4) The first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.

(5) The Supreme Court may decide on the validity of— (a) a declaration of a state of emergency; (b)any extension of a declaration of a state of emergency; and (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

(6) Any legislation enacted in consequence of a declaration of a state of emergency–– (a) may limit a right or fundamental freedom in the Bill of Rights only to the extent that— (i) the limitation is strictly required by the emergency; and (ii) the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency; and (b) shall not take effect until it is published in the Gazette.

(7) A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.

DUT
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