LSK offers to mediate retirement age case to avert crisis

Law Society of Kenya chairman Isaac Okero addresses journalists in Nairobi on May 29, 2016 on the controversy surrounding the stay orders given by Supreme Court Judge Njoki Ndung'u on Justices Kalpana Rawal's and Philip Tunoi’s Court of Appeal retirement age case. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • LSK boss Isaac Ikero has contacted judges involved in the retirement age case and their employer for a mediation offer.
  • The injunction was delivered just 30 minutes after the Court of Appeal rejected her application to continue serving as a judge until the age of 74.
  • The injunction caused an uproar, with prominent lawyers in the city questioning whether Justice Ndung'u had read the Court of Appeal judgement in full.

The Law Society of Kenya (LSK) has asked judges involved in a case on retirement age to consider settling the issue out of court, to avoid plunging the country’s Judiciary into crisis.

Addressing journalists in Nairobi on Sunday, LSK chairman Isaac Okero said his office had contacted the judges and their employer, the Judicial Service Commission, for a mediation offer.

“We intend to propose mediation as a solution to this crisis, but I don’t want to pre-empt any of the options that mediation will provide,” Mr Okero said.

The lawyers' body was responding, two days later, to Supreme Court Judge Njoki Ndung’u's controversial decision to issue an injunction allowing Deputy Chief Justice Kalpana Rawal to continue to serve.

The injunction was delivered just 30 minutes after the Court of Appeal rejected her application to continue serving as a judge until the age of 74.

Justice Rawal and her Supreme Court colleague Philip Tunoi have contested the constitutional requirement that judges retire at 70, arguing they were appointed under the old Constitution when the age was capped at 74.

INJUNCTION UPROAR

On Friday, though, Justice Ndung’u’s decision cast her in an ugly debate, especially since she had initially made public pronouncements on the retirement age.

The move caused an uproar, with prominent lawyers in the city questioning whether she had read the Court of Appeal judgment in full before stopping it altogether.

Last evening, however, the LSK, which said it would apply to be enjoined in the case as a friend of the court, refused to be drawn into a debate on the merits of the injunction, saying every court decision is based on prevailing circumstances.

“The institution of the petition to the Supreme Court was a clear exercise of her (Kalpana Rawal) rights. Nobody can dispute that. Whether or not Justice Ndung’u misconducted herself in providing the ex parte order that she did depends on the circumstances of the facts of the case,” the LSK boss argued.

He went on: “Considering that the proceedings on Friday before the Supreme Court judge were in accordance with the Supreme Court Act and rules, the circumstances under which the proceedings were undertaken are always determined by the particular facts of the case.

“We don’t have all the facts with us now, so we would rather not speculate before we receive them.”

But the LSK says it is offering to mediate in the conflict because an out-of-court settlement would avert a possible constitutional crisis.

Justice Rawal's case and Justice Ndung’u's injunction, they argued, fall within the rules but represent "the greatest challenge to the apex court of the country.”

CRISIS FACING JUDICIARY

Mr Okero cited three challenges if the case went on: Next month, Chief Justice Willy Mutunga is to retire, meaning Justice Rawal will be the acting president of the Supreme Court and will be required to constitute a bench to hear her own case.

The lawyers argued that could attract a legal challenge.

In addition, the Supreme Court would be unable to get a quorum of five judges as Justice Rawal cannot sit in her own case.

Justice Tunoi, who is under suspension and is facing a tribunal over his conduct, cannot also sit and since CJ Mutunga would have retired, there are questions about Justice Ndung’u, who has previously commented on the retirement debate.

The lawyers say this predicament will require judges in this legal situation to consider alternatives rather than sticking to their guns.

“The doctrine of necessity, already stretched to its absolute limit, cannot be repeatedly cited to justify the continued function of the SCOK (Supreme Court of Kenya) in defiance of the established judicial norms.

“It is time the actors in this dispute ask themselves whether, the merits of the retirement age case notwithstanding, the agitation of their respective positions is worth placing the Judiciary and the country in this precarious position.”