Power struggle rocks Judiciary ahead of Mutunga's retirement

Troubled supremacy as Chief Justice annuls Njoki Ndung’u order on Kalpana Rawal

What you need to know:

  • A Court of Appeal bench of seven judges last week ruled that judges should retire at the age of 70, upholding an earlier ruling of a five-judge bench of the High Court.
  • Those who will hear the two appeals are Justices Mutunga, Mohammed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u.
  • The Chief Justice is set to vacate office in two weeks and should Lady Justice Rawal still be in office, she would act at the head of Judiciary and the President of the Supreme Court pending the appointment of a new CJ.

A vicious power struggle and political meddling are behind the feud in the Judiciary, whose top judges will convene today to deliberate on the hearing of a case involving Deputy Chief Justice Kalpana Rawal.

Chief Justice Willy Mutunga, viewed as one of the most progressive heads of the Judiciary in Kenya’s history, now finds himself deep in a succession battle he tried to avoid since as far back as 2013, when he sought legal advice on the retirement age of judges.

The thinking then, sources told the Nation on Monday, was that the Supreme Court should not arbitrate matters that pose a conflict of interest against any of its judges and that cases touching on the bench should terminate at the Court of Appeal.

Among those that Dr Mutunga, through the Judicial Service Commission, consulted over the matter were Attorney-General Githu Muigai, constitutional lawyer Yash Pal Ghai, and lawyer Pheroze Nowrojee.

Only Mr Nowrojee supported the argument that the retirement age of serving judges be set at 74 years.

A Court of Appeal bench of seven judges last week ruled that judges should retire at the age of 70, upholding an earlier ruling of a five-judge bench of the High Court.

But Justice Rawal, who had gone to court seeking to quash orders that she retire at that age, quickly sought, and got, a stay order from Justice Njoki Ndung’u of the Supreme Court, the very institution that did not want to hear the case in the first place.

The general feeling within legal circles is that Dr Mutunga, who on Monday fixed the hearing date for the appeal before a five-judge Supreme Court bench on Thursday, was seeking to “remedy” Justice Ndung’u's decision.

Justice Ndung’u set the hearing for June 24 — five days after the intended date of Justice Mutunga’s retirement.

By staying the orders of the Court of Appeal that Justice Rawal retire, Justice Ndung’u in effect reinstated her.

That means that she would be the acting Chief Justice and president of the Supreme Court if Justice Ndung’u’s hearing date were adhered to.

NOT IN YOUR JURISDICTION
In his directives, which were swiftly opposed by Justice Rawal, the CJ used his administrative powers as the Chief Justice and president of the Supreme Court to bring forward the hearing date.

First, the CJ directed Justice Rawal, the Judicial Service Commission, the International Commission of Jurists, Kituo Cha Sheria, and activist Okiyah Omtatah, who are all parties in the case, to appear before Justice Smokin Wanjala and Justice Ndung’u on Tuesday for directions on the hearing.

“My directions are that the Registrar of the Supreme Court serves the parties to appear for the hearing of this application inter-partes before a five-judge bench of the Supreme Court on Thursday,” he added.

Those who will hear Justice Rawal's two appeals are Justices Mutunga, Mohammed Ibrahim, Jackton Ojwang, Wanjala and Ndung’u.

But Justice Rawal, through lawyer Kioko Kilukumi, opposed the new directions as illegal, arguing that the CJ has no powers under the Supreme Court Act to single-handedly vary a ruling by a judge of the same court.

He claimed that his client’s rights were being violated.

“The honourable Chief Justice has acted contrary to the Constitution in interfering with the independence of the judges of the Supreme Court,” said Mr Kilukumi.

“Dr Mutunga’s interference is calculated and designed to undermine and completely erode Justice Rawal’s constitutional right to a fair hearing in violation of Article 50 of the Constitution.”

He also submitted that the CJ has no liberty to interfere with the decisional independence of any judge of the Supreme Court.

“The two-judge bench is improperly empanelled in contravention of the Supreme Court Act, which sets out the purpose and function of a two-judge bench,” he said.

On Monday, lawyers close to the CJ’s office said Dr Mutunga, in convening the sitting on Tuesday and fixing the hearing on Thursday, acted on the popular view within the Judiciary that the Supreme Court, as currently constituted, was too “conflicted” to make a non-partisan ruling on the retirement age of judges.

Three Supreme Court judges are said to be strongly in favour of Justice Rawal and Justice Philip Tunoi serving until they attain the age of 74, while four are against it.

“The Supreme Court is seriously conflicted because three judges have pronounced themselves on this matter and cannot change their position,” said the source.

“The general feeling is that it will be desirable for the Supreme Court to find a reason to pronounce itself ineligible to handle the appeal.”

JUDICIARY AUTONOMY

Lawyer Ahmednasir Abdullahi said two camps had emerged within the Supreme Court bench as well as the JSC, and that the power battles between the camps were undermining the independence and integrity of the Judiciary.

“The Supreme Court and the JSC are both divided along the progressive line,” said Mr Abdullahi, himself a former member of the JSC.

“One camp supports the progressive leadership of the Chief Justice while the other leans towards the government. The Supreme Court, for instance, has four judges on the CJ side, while three are against him.”

That difference of opinion and ideology has been simmering quietly within the Judiciary for a long time, but is now playing out in the public gallery.

While Dr Mutunga has tried to overturn the status quo he found at the Judiciary, and is fiercely protective of its independence, he has faced opposition from pro-establishment judges and government appointees in the JSC.

The power struggles within the Judiciary only came to the fore following the decision by Justices Rawal and Tunoi and High Court Judge David Onyancha to sue the JSC for deciding in 2014 that all judges should retire when they attain the age of 70 years.

The matter came up after a lawyer in an appeal case by Nick Salat, who had lost the race for Bomet senator, questioned the composition of the bench, arguing that one or two judges had attained retirement age.

A five-judge High Court bench ruled in favour of the JSC, prompting Justice Rawal and Justice Tunoi to move to the Court of Appeal. Justice Onyancha later withdrew his appeal.

It was at that time that the CJ held a meeting with all parties involved and it was agreed that the ruling of the Court of Appeal would be final.

“There was a great difficulty constituting the bench because some judges were citing relationships here and there. Eventually a seven-judge bench was set up,” said the source on Monday.

The Chief Justice is set to vacate office in two weeks and should Justice Rawal still be in office, she would act at the head of the Judiciary and the president of the Supreme Court pending the appointment of a new CJ.