Riddle of judges’ retirement age

Divisions in the Judiciary on the effective retirement age for judges is the latest threat to the delivery of justice.

Judges appointed under the old constitution insist they should retire at 74 years as provided under the old law, and not the 70 years set by the new Constitution.

Chief Justice Willy Mutunga confirmed to the Sunday Nation that the Judicial Service Commission was addressing the matter and would seek legal opinion before arriving at a decision.

Dr Mutunga said the JSC had drawn up a list showing when all the current judges are due for retirement. Those who are serving and had exceeded 70 years of age are doing so with the authority of the Commission.

“I can confirm that the JSC is dealing with this matter that has come to it as a matter of clarification rather than dispute. We will be seeking legal opinion from various quarters on the issue before the JSC makes the ultimate decision. We will do that because the legal interpretations on the issue are not unanimous,” said the Chief Justice.

The JSC issued a circular  informing judges that the retirement age is 70 years, and notifying those nearing this age that they will be contacted individually to discuss plans for their retirement.

But judges appointed under the old constitution argue that they had a vested right to retire at 74 since this is the age that was applicable when they were appointed to office.

According to a senior constitutional lawyer who requested anonymity, it would be absurd to have a situation where judges who work side-by-side have different retirement arrangements merely because they were appointed under different constitutions.

The lawyer argued that a number of other factors support a uniform retirement age for all judges without distinction based on when they were appointed.

First the old constitution, having been repealed, is no longer in force for any purpose. It cannot, therefore, be invoked to claim rights because any rights that were preserved in the new constitution are expressly stated.

STILL IN OFFICE

Secondly, the lawyer argued, Chief Justice Evan Gicheru who, under the previous constitution had a vested right to retire at 74, was compelled to retire within six months of the new constitution coming into force.

Also, the Attorney-General, who had a security of tenure under the previous order, was required to retire within one year by the new law.

Further, judges appointed under the previous constitution and who also had security of tenure, were subjected to a vetting process, which resulted in loss of jobs for some of them. Also they did not claim that their removal from office was contrary to the provisions of the old constitution.

The lawyer argued that there is no good reason for selective application of the new constitution so that only provisions on the retirement of the Chief Justice and the Attorney-General are enforced while those relating to the retirement of other judges are ignored.

Even as the JSC insists that the retirement age is 70 years, some judges who have passed this age are still serving.

In the same vein, considering that a few of the judges affected by this change may have served for as long as three years after reaching 70 years, why did the JSC not move sooner to implement the retirement age before the affected judges attained the prescribed age?

According to the lawyer, that this issue was left unaddressed for long, allowing judges to remain in office under circumstances that are now being questioned, is a reflection of the leadership of the judiciary. As such, the CJ and Chief Registrar should have led the judiciary in taking a clear decision a lot earlier.

Questions have also been raised about the legality of judgments passed by the affected judges, as it could well be argued that they were in office illegally.

Unless resolved amicably, the issue may become the subject of litigation, which will divide the judiciary and affect service delivery. If litigation becomes necessary  depending on how it arises  there will be questions as to who is qualified to deal with the litigation, given the fact that the judges appointed before the passage of the new constitution will be faced with a situation of conflict of interest, which may not allow them to preside over such cases.