Top judges dismiss JSC on retirement

Chief Justice Willy Mutunga on Monday sat in silence and listened as the Supreme Court rubbished the directive by the Judicial Service Commission for judges to retire at 70.

Four of the seven judges of the court dismissed as invalid the JSC’s directive barring judges who have attained 70 years of age from presiding over cases.

Judges Njoki Ndung’u, Jackton Ojwang, Kalpana Rawal and Philip Tunoi disagreed with the chief justice in court while giving a judgment in a petition challenging the election of Bomet Senator Wilfred Lesan.

The judges made their views known in a judgment in the case where Kanu stalwart Nick Salat was challenging the election of Prof Lesan as Bomet senator.

Dr Mutunga wrote a dissenting opinion, which did not contain any views on the judges’ retirement, but has said that he will leave on June 16 next year on attaining the age of 70 as prescribed in the Constitution. The dissenting judges want the age to revert to the previous 74 years.

DILEMMA FOR JUDICIARY

The position taken by the country’s top judges creates a dilemma for the Judiciary should the dispute reach the Supreme Court, where most of the judges have made their positions known without having to preside over the matter.

Justice Ojwang, who read the judgment on behalf of the four judges, took time to give their stand on the matter, saying that the JSC did not have the mandate to compel judges to vacate office on the grounds that they have attained retirement age.

The response by the judges followed a letter written by a lawyer, Mr Titus Koceyo, who is representing Mr Nick Salat in the election petition. Mr Koceyo expressed anxiety about the recent directive issued by the JSC to the effect that judges over 70 years of age must not preside over matters in court.

“The said letter raises vital constitutional questions as to the rights and obligations of a judge who is in office,” read Justice Ojwang, adding that the bench had the competence to hear and determine Mr Salat's case, notwithstanding that one of its members had already attained 70 years.

He further said that the security of tenure of judges is safeguarded under the Constitution and any directive such as that by the JSC, which departs from this principal, is a blatant violation of the Constitution.

But while agreeing with the judgment, Dr Mutunga dissented on the analysis and determination of the mandate of the JSC.

He said that by arriving at a finding on a letter addressed by one party, the judges violated the fundamental principles of due process of the law pertaining to the parties in the appeal and the JSC, which was not a party to the suit.