The litigation over the judges’ retirement age throughout the entire court structures, right from the High Court of Kenya to the Supreme Court, had a number of interesting turns and twists. Too much drama and emotion issued from the proceedings. Lawyers assumed centre stage and quite a number of them came out poorer. Professional decorum and even the quality of advocacy at the Bar were, in the process, brought to doubt and even shame.
A number of players had their statuses enhanced whilst others came out very badly. Even judges were not spared. And activist Okiya Omtata emerged as the star.
At the Supreme Court, where the real drama of the litigation as it unfolded gripped the entire nation, both Justices JB Ojwang and Lady Justice Njoki Ndung’u are seen by many observers to have had their reputations soiled. They not only advanced ideas that were illiberal and unconstitutional in their respective judgments, but were seen to lean heavily in favour of the two judges that appeared before the court and who based their entire case on a breach of the Constitution.
Lady Justice Njoki Ndung’u was widely believed to have overreached when she issued orders in favour of her two colleagues and fixed the inter-parties hearing for June 24, 2016 when she knew too well the court would have had no quorum as the Chief Justice would have retired. That act on the part of the judge would have allowed Justices Kalpana Rawal and Phillip Tunoi to not only serve for an illegal and unconstitutional tenure, but also allowed Rawal to act as Chief Justice of Kenya. Many observers clearly saw the orders granted by the judge as skewed and in favour of a certain predisposition.
The body chemistry of the Supreme Court judges was very telling. It was not lost to television viewers and court observers of the tense and poisonous atmosphere between the five judges of the court. For instance, it was obvious that Justice Ojwang not only did not speak to the Chief Justice during the entire court proceedings, and positioned his chair in such a manner as to leave no doubt he was keeping his distance. The diction in his dissenting judgment was also seen as both inappropriate and unfortunate for a judge of the Supreme Court.
Dr John Khaminwa, who was acting for Kituo cha Sheria, spiced the proceedings with both witty and frivolous interjections, and was, on many occasions, disruptive. His client then withdrew instructions as he unilaterally adopted the position that the judges ought to retire at age 74 years, when the clients view was that the retirement age was 70. As he collected his file, Dr Khaminwa loudly narrated to the court how ‘cartels’ had engineered the withdrawal of the client from the proceedings.
The truth of the matter is that such a progressive organ like Kituo Cha Sheria would not associate itself with the submission by its counsel that judges should retire despite the express provision of Article 167 of the Constitution that mandates retirement age for judges at 70 years.
But the body that suffered the most is the Law Society of Kenya. The progressive credentials of the Society are well known in the history of Kenya. Its struggle in the second liberation and the reforms for the new constitution are legendary. In fact, it is the Society that drafted the first alternative constitution in early 1994.
Legal practitioners and even ordinary Kenyans were utterly dismayed and surprised when the Law Society of Kenya issued a press statement seeking to meditate the dispute on the retirement age of judges at the Supreme Court. Many expected that the society, as it had on many previous occasions, would spearhead a process that would validate and protect the Constitution instead of mediating in a process that violates it.
Brought to light
The very idea that a constitutionally decreed retirement age of 70 could be negotiated left a bitter taste in the mouths of many Kenyans. It was only when the details of the proposals advanced by the Law Society were made public that the true intention of the society came to the open.
Right from the start, the position of the Society was believed in legal circles to have been influenced by senior lawyers sympathetic towards the two judges before the Supreme Court, and with known vested interest in Lady Justice Kalpana Rawal becoming the acting head of the Judiciary.
The proposal advanced by the society was to allow Rawal to retire in December 2016. Tunoi, who is already 72, wanted to retire when the Tribunal investigating the corruption allegation concluded its hearing. Once that process was over, judge Tunoi has the option to appeal to the Supreme Court. In other words, he would retire at 74.
The Judicial Service Commission rejected the proposals outright as being unconstitutional, and brought the arbitration to an end.
Several lawyers that the Nairobi Law Monthly spoke to were in agreement that the initiative by LSK was misguided and had no basis in law. Even more puzzling, according to them, is that the Society initiated a process it ought to have known was illegal and unconstitutional. They are of the view that the society’s historic struggle and credentials should not be soiled by the temporal power games played in the country.