How top court circus could have been avoided

The dismissal of Deputy Chief Justice Kalpana Rawal’s appeal challenging the High Court’s verdict that judges should retire at 70 years was inevitable.

The constitutional argument on which this appeal rested was always dodgy. Justice Rawal has immediately rushed to the Supreme Court and obtained stay orders – so that she may continue in office – and then she will inevitably file a substantive appeal to challenge the decision of the Court of Appeal.

It is a drama many will watch keenly, in part because the Supreme Court unprocedurally entangled itself in the issue.

Sitting over the Nick Salat election petition on October 19, last year, the retirement issue was raised peripherally in a letter to the CJ. Salat’s lawyer had asked if it was proper for Justice Philip Tunoi to be part of the Bench given that he was past the retirement age of 70 years.

Though they had not been addressed on the issue of retirement, Justices Jackton Ojwang and Njoki Ndung’u, joined by Justices Tunoi and Rawal – who had an interest in the issue – ruled that judges who had attained the age of 70 could not be compelled to retire. They argued that the Judicial Service Commission (JSC) did not have “the competence” to decide “when a judge may perform their judicial duty”.

Chief Justice Willy Mutunga dissented, reminding his colleagues that there was no case on the retirement question before them.

INTERESTED PARTY

What happens now? Justice Tunoi cannot sit since he is an interested party and is facing a judicial tribunal on allegations of bribery. Justice Rawal cannot sit, since it is her case. Justices Njoki and Ojwang should not sit, having prejudged the question long before it had come before them. If a Supreme Court Bench cannot be properly and ethically constituted, should the Supreme Court even consider an appeal at all?

The neatest solution would have been for the Supreme Court to make a decision not to take the case at all. After all, the entire court is professionally conflicted, both Justices Tunoi and Rawal are their colleagues.

Even if they can be objective, no fair-minded Kenyan is likely to see them as neutral. If the Supreme Court took this position, the decision of the Court of Appeal would have been final.

This is exactly how the South African Constitutional Court confronted and resolved the problem in the case of Judge President Mandlakayise John Hlophe v. Premier of the Western Cape Province and others. In that case, which was an appeal by Justice Hlophe to the Constitutional Court from a judgement of Supreme Court of Appeal, the Constitutional Court faced a problem very similar to the one that arises now that Justice Rawal has gone to the Supreme Court.

As constituted for Hlophe hearing, the Constitutional Court included judges who themselves had complaints pending before the JSC. And yet without the participation of those judges, the Constitutional Court would not have been properly constituted.

For that reason alone, the court would not have had the quorum to hear and decide the application. The court asked itself whether “it was necessary for this court, as presently constituted, to hear and determine the applications for leave to appeal”.

The over-riding issue, as the court saw it, was whether an injustice would result if they refused to grant leave to appeal. It ruled that it would not grant leave concluding that the applicant was only trying to vindicate a procedural right and that since he had already exercised the right of appeal to the Supreme Court of Appeal, injustice had not been done to him.

INVOLVE FIVE JUDGES

This would have been the neat way out for the Supreme Court too in this case.

But there are more ticklish questions: What happens to the cases that were already partly heard before Justices Rawal and Tunoi? Do they start afresh or do they get postponed until new Bench is constituted?

Fortunately, Supreme Court matters usually involve five judges. This means that the parties would not be necessarily prejudiced by a decision to continue from where Justices Rawal and Tunoi would have left off. The right thing to do is a decision in favour of proceeding from where the matters were subject, of course, to any objections the parties may have.

There are those who thought that the Court of Appeal decision effectively terminated the Tunoi Tribunal since he would have no longer technically be a judge. That is a misreading of the Constitution. What is at issue is ‘judicial misconduct,’ namely, what Justice Tunoi did when he was a judge.

The only difference yesterday’s Court of Appeal decision makes is that Justice Tunoi can no longer be sacked. And if the tribunal makes a finding that there is misconduct that amounts to a criminal offence, it could still recommend that he be indicted.

The bigger question though is the composition of the Supreme Court once Chief Justice Willy Mutunga retires next month. Under the Supreme Court Act, the court sits as a Bench of five. Though any two or more judges may sit as a court, they may do so only on three procedural matters: One, to decide if they should hear an application to give a party permission to appeal to the court; two, to decide if an application for such permission should be based on written submissions and finally, to decide an application for permission to appeal to the court.

This means that once Chief Justice Mutunga leaves, the Supreme Court, which has seven judges, will no longer be properly constituted to hear and determine any proceedings. It is easy to foresee how a crisis could arise. Three judges can sit to permit a party to file an appeal to the Supreme Court. So appeals will be queuing up at the Supreme Court but the court won’t have enough judges to constitute a proper Bench.

CONSTITUTIONAL CRISIS
But the real constitutional crisis would arise if there was another standoff between organs of government such as there was in 2013 over the Division of Revenue Bill. When such a crisis happens, only the Supreme Court can give constitutional guidance through an advisory opinion.

Who is to blame for the looming mess? Chief Justice Willy Mutunga and the JSC shoulder bear the blame. Surely, the CJ’s succession planning should have kicked off at least a year before he made the decision to leave. As for the JSC, it should have actively engaged both the CJ and the affected judges to start winding down their case loads. Litigants should not be thrown into a tailspin merely because judges are retiring.

Some place blame too on Justices Rawal and Tunoi. There is something dishonourable about the way they have handled themselves. They have fought this battle with pettiness and disingenuous arguments unworthy of such long-serving judicial officers. Even if they had won this case, any moral authority they initially had would have evaporated.

Most tragic, from a legal point of view, it is the astonishingly illiterate claim made by these two experienced judges that their retirement was governed by a repealed Constitution even though conceding that tenure and terms of employment were governed by the new one. Constitutions are an exercise of sovereign power: an old constitution is repealed in entirety once a new one is enacted.

This is true in every country where constitutions are respected unless there are explicit clauses that save some of the provisions of the old one.

Mr Maina is a Constitutional Lawyer