Clever legal traps could mar smooth judiciary transition

What you need to know:

  • By his position, Dr Mutunga is also the president of the Supreme Court, two of whose other members may also retire this year.
  • In separate cases that Justices Rawal and Tunoi presented to court seeking a judicial interpretation of their correct retirement age, the High Court ruled that all judges must retire at 70 years, a decision the two have since appealed against.

Chief Justice Willy Mutunga used the recent launch of the Judiciary Elections Committee to confirm that he intends to retire in June.

The Chief Justice explained that he had decided to retire this year, 12 months before his official retirement age, to provide ample time for the identification of his replacement ahead of the 2017 elections.

In his view, the process of appointing the next Chief Justice could take as long as one year, which might then interfere with the Judiciary’s preparations for the next elections scheduled for August 8, 2017. His decision to retire early, he explained, was his personal contribution to orderly elections next year.

By his position, Dr Mutunga is also the president of the Supreme Court, two of whose other members may also retire this year. Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi have already been served with retirement notices which they, however, dispute because they argue that the retirement age applicable to them is 74 years, based on the provisions of the former Constitution which was in force at the time of their appointment. The Judicial Service Commission, on the other hand, takes the view that all judges must retire at 70, the age provided under the current Constitution.

In separate cases that Justices Rawal and Tunoi presented to court seeking a judicial interpretation of their correct retirement age, the High Court ruled that all judges must retire at 70 years, a decision the two have since appealed against.

Other than the pending decision on the retirement age, several justices of the Supreme Court face the risk of removal from office following allegations of misconduct. Justice Tunoi faces removal proceedings after allegations that he received a bribe of $2 million (Sh200 million) to make a decision in favour of Nairobi Governor Evans Kidero in an election petition filed by Ferdinand Waititu.

A tribunal appointed by the President to inquire into the accusation has, however, become the subject of controversy after claims that veteran lawyer Sharad Rao is not qualified to chair the tribunal on account of his age. A suit has been filed in the High Court seeking a finding to that effect.

Justices JB Ojwang’, Njoki Ndung’u and Mohammed Ibrahim reportedly also face a complaint from the Law Society of Kenya that they dragged the issue of the retirement age into an unrelated case, with a view to pre-empting whatever decision might be made on the same issue by other courts. The judges are also accused of engaging in a go-slow to protest against the handling by the JSC of the retirement age issue.

After initially showing no interest in this second complaint, the JSC has now reportedly formed a committee to make a preliminary investigation. If the committee finds substance in the allegations, it will recommend another tribunal.

APPLICABLE RETIREMENT AGE

In the pending appeal, if the Court of Appeal confirms that 70 years is the applicable retirement age for all judges, this would probably make it unnecessary to pursue the complaints against Justices Rawal and Tunoi.

Of the seven justices of the Supreme Court, six are facing retirement or the threat of removal from office for disciplinary reasons, or both.  The idea that the makers of the Constitution had of the Supreme Court that it would provide leadership and poise in the Judiciary has not exactly flourished.

While far from perfect, the Chief Justice has provided visible moral leadership in the Judiciary and his stand has had a positive influence on the country’s politics. His departure is likely to have a profound negative effect on the public perception of the judiciary, whose apex court is at an advanced stage of implosion from internally generated problems.

The imminent retirement of Justice Mutunga inevitably now shifts focus to who the next Chief Justice might be, and will also raise anxiety on how that next leader of the Judiciary will approach the job.

If, in addition to the office of Chief Justice, the country is required to fill that of Deputy Chief Justice and also the position currently held by Justice Tunoi, this will mean that almost half of the seven positions in the court are coming up for renewal and will imply a significant makeover for this young court. Of course, it could get much worse if the other judges who are subject to disciplinary proceedings are also removed.

The clever legal traps that actors seem eager to lay against one another, and the ease with which it seems possible to stall political decision-making through the use of the judicial process, also means that more surprises and stalemates may be on the way, and could affect the ongoing transition in the Judiciary with possible effects on national politics.