Rescuing Judiciary and the country from the Supreme Court

Last week’s events in the Supreme Court where five judges, including the Chief Justice, disagreed on the content of a judgment that they delivered, is reminiscent of an incident on June 30, 2001, when three judges of the Court of Appeal, then the highest court in Kenya, had a similar falling out over the substance of their judgment.

Justice Philip Tunoi, then a member of the Court of Appeal, and now a member of the Supreme Court, was involved in both quarrels.

On the previous occasion, Justice Tunoi sat as part of a three-judge bench, with Justices Richard Kwach and A.B. Shah.

At the end of the case, Express Kenya Limited vs Manju Patel, the three reportedly agreed to allow the appeal and Justice Shah was to draft the judgment.

Under circumstances that were never clarified, Justice Shah changed his mind and now wanted to disallow the appeal and, without involving Justice Kwach, convinced Justice Tunoi to go along with him, which meant that the two were now the majority, leaving Kwach with a minority judgment.

Instead of writing an ordinary dissent, Justice Kwach delivered an attack on the two judges whose integrity he questioned, asserting that whereas, previously, the Court of Appeal had been “above suspicion”, this had now changed and there was a need “to redeem the independence and reputation of this court.”

The matter did not end there.

On the same day, Justice Tunoi delivered a letter to the Nation, which he had himself signed, a rejoinder to Justice Kwach’s stinging attack.

In the letter, Tunoi accused Kwach of playing to the gallery and challenged him to resign his job if he thought the Judiciary was that bad.

RETIREMENT AGE

Thereafter, amid calls for an independent investigation into the real issues surrounding this astonishing fallout, Chief Justice Bernard Chunga moved in, meeting the warring judges behind closed doors from where they emerged to address a press conference, declaring that their fight was an internal judicial matter.

They made a show of reconciliation, tendering an apology over any embarrassment their extraordinary fight may have caused.

Justice Tunoi survived not only that incident but also the “radical surgery” of 2003 and the more recent vetting process, earning a promotion to the Supreme Court in the process, and is now part of another history-changing moment in the Judiciary.

Last week’s incident arose out of two letters written to the Chief Justice and to the Chief Registrar by Mr Titus Koceyo, a lawyer for one of the parties to an appeal by politician Nick Salat, challenging the results of the Bomet Senate seat election.

Five judges had heard the appeal, including Chief Justice Mutunga, Deputy Chief Justice Kalpana Rawal and three others – Njoki Ndung’u, J.B. Ojwang and Tunoi.

The lawyer wanted assurance that questions surrounding the capacities of Justices Rawal and Tunoi, arising from the retirement age controversy, would not affect the interests of his client.

In their judgment, the majority (Rawal, Tunoi, Ndung’u and Ojwang) brought up the letter to the Chief Justice, without anybody’s prompting, and without showing how a letter not written to them had become part of the case, as a hook into the retirement age controversies, in which two of them are personally involved.

A STRONG DISSENT

They made a finding that the JSC directive on retirement was a nullity, declaring that the JSC had no supervisory power over judges.

Chief Justice Mutunga delivered a strong dissent, accusing his fellow judges of dealing “with extraneous issues that should not be included in the judgment.”

He pointed out that the issues surrounding the retirement age were “neither found in the submissions of the parties nor did they form the issues framed by this court for determination,” and that “no party before the court sought any reliefs in this regard.”

The Chief Justice noted that two of the judges (Tunoi and Rawal) had filed separate suits in the High Court challenging the very actions of the JSC that they were now sitting in judgment over.

In several places in his judgment, the Chief Justice accused the majority of having chosen to disregard existing legal precedents of their very court, and declared that his fellow judges had “violated and subverted the national values and principles articulated in Article 10” and that their actions “smack of “judicial utado?” a worrying form of judicial impunity.”

In 2001, the Law Society had reacted to the Court of Appeal fallout by calling a press conference to demand a commission on inquiry into the incident.

Last week, the Society also called a press conference, this time to demand that the Supreme Court be disbanded and its duties re-assigned.

FORCES OF GOODWILL

Just like 2001, when the astounding fallout in the Court of Appeal proved a major turning point and contributed to the radical surgery two years later, last week’s incident has broken what remained of the backbone of the Supreme Court.

These are the same judges who, in the presidential election petition in March 2013, misrepresented a minority judgment from Seychelles, holding it out as the judgment of the court.

Was it carelessness or willful deceit?

Sadly, it is difficult to suggest what should now be done.

The Law Society has suggested the disbandment of the Supreme Court, a position that will be debated in the coming days.

The Society’s position is important not because it is correct but because it is the first significant acknowledgement that there is a problem with the Supreme Court.

The forces of goodwill should now come together to discuss how to rescue the Judiciary, and the country, from the Supreme Court.