An undeserved footnote is all Justices Rawal, Tunoi are worth

Payton Mathau

On December 11, a five-judge bench of the High Court comprising Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki delivered a historic, precedent-setting judgment on what the correct retirement age for judges ought to be.

The judgment was in response to an application by Supreme Court judges Kalpana Rawal (Deputy Chief Justice) and Philip Tunoi, who had argued that they should continue serving until they attain 74 years. The Constitution caps the retirement age for judges at 70 years.

In a unanimous judgment, the court was emphatic that the two judges must retire once they attain the age of 70 years. Justice Rawal will be 70 on 14th of this month, while Justice Tunoi turned 70 years two years ago. The court was very particular in its decision and ruled that the arguments the two judges advanced before it that they should be allowed to retire at 74 was “absurd and untenable”.

The irony of the matter is that Justice Tunoi has been enjoying the full rights and privileges of a Supreme Court judge for two years when, according to the judgment, he should have hung his boots in 2013.

Following the judgment, the conundrum that a rises is what the legal implications are regarding decisions and rulings he rendered after he turned 70, and how the Kenya public is supposed to recover the millions of shillings in salaries and other entitlements he has been earning illegally. Even more profound is the ethical conduct and injured stature of a judge of the Supreme Court who, in total disregard of the constitution, obtained an injunction against his mandatory retirement, and moved from court to court as he illegally sat in court and earned salaries and allowances to which he wasn’t entitled.

Legal scholars and lawyers alike described the case advanced by the two judges of the Supreme Court as embarrassingly simplistic as it was selfish and self-serving. One reputable lawyer who spoke to the Nairobi Law Monthly on condition of anonymity called the cases by the judges “a shameful charade characterised by pedestrian arguments most typical of Kanu-era judges”.

In light of the contents of Article 167 of the Constitution, which explicitly states that all judges shall retire once they attain the age of 70 years, a logical legal argument to the contrary was a difficult one to make. The court was of the opinion that contesting such a clear constitutional provision was either an act of simple naivety or a total subversion of the Constitution on the part of the two judges. Consequently, the judges’ case, the court observed as it poked holes in it at will, as advanced before it contradicted the Constitution and would in no way hold.

The High Court judges were most scathing in their dismissal of the cases. First, the court wondered how judges who swore to defend the Constitution could file a suit challenging and even subverting the same law. The court stated that the “…the Oath of Allegiance taken by the judges on the effective date bound them to the new constitution, which they swore to uphold.”

Second, the court scoffed at the judges’ arguments that their retirement age is governed by the old constitution when the office or court they sit in did not even exist under the old law. This Kanuesque argument created much amusement in the court, and led to the inescapable conclusion that the two judges filed the suit not to vindicate a right but out of sheer desperation on their part.

Third, the Court, in dismissing the application found that the cases filed by the two judges were too trivial and lacked a solid or arguable component that could entice the court to propound on the same at length.

Immediately after the judgment was read, Justices Rawal and Tunoi, quite expectedly, applied for a stay and injunction and pleaded that the court allows them to continue sitting. That their plea was in contravention of Article 168 of the Constitution was completely lost to the two who seem to be more concerned with self-preservation rather than either protecting the stature of the Supreme Court or to showing some fidelity to the Constitution.

According to seasoned lawyers well-versed with the thinking of the judges and the law, the judges’ strategy is simple: What their stay application seeks to achieve is a prolonging of their “occupation” of the Supreme Court. This strategy will entail a prolonged battle with both the Judicial Service Commission and even the general public. Tunoi has already served two years thanks to injunctions generously given to him by the courts, and Justice Rawal wants to employ similar technique.

Rethink employment strategy

The cases by the two judges of the Supreme Court have, according to our sources, sent the Judicial Service Commission in a rethink in terms of its recruitment strategy. The Commission, or at least some of its members, agrees that fundamental mistakes were made in the appointment of these two judges to the Supreme Court. Justice Tunoi is one of the longest-serving judges in the judiciary, but no one can remember a single solid judgment worthy of some consideration that he ever wrote, whether in the high Court or the Court of Appeal. His appointment was done during the Moi era, principally because of his ethnicity and loyalty to the political elites of the time. In both the High Court and the Court of Appeal, it is a well-known secret that members of the court held Justice Tunoi in low esteem.

Many Kenyans saw his appointment to the Supreme Court as a pure accident that quickly metamorphosed into a national calamity. Together with Rawal, he is seen as a judge who simply makes the quorum in the court and is not a judge who members of the legal fraternity and practitioners of the Supreme Court hold in any regard. His retirement then will give the JSC and the country reprieve from a masquerader, and a chance to add a distinguished Kenyan to the “solid quartet of Justices Willy Mutunga (Chief Justice), JB Ojwang, Mohamed Ibrahim and Smokin Wanjala in the Supreme Court.

Justice Rawal will not be missed in the Supreme Court either. Her legal careers both at the Bar and on the Bench are as malnourished as Justice Tunoi’s. Her contributions at the bench as well as her achievements at the Bar are hardly known. Considerations for her ethnic background rather than pure merit or solid achievements are what have propelled her to offices she probably never dreamt of holding.

A close scrutiny and appreciation of the career trajectories of the two judges informs their insular attitude and enduring entitlement to forcefully occupy seats in the Supreme Court in total contravention of the Constitution. When one’s entire career and steep rise to the highest court is either through patronage or pure accident, a sense of false belonging envelops any rational appreciation and appraisal of the factual and legal matrix of a given set and its subsets. This explains why the two judges want to overstay their welcome at the court, and explains their view of the constitutional provision requiring them to retire as a very unfair inconvenience.

Undistinguished careers

Whatever the outcome of their latest manoeuvres, the High Court delivered a landmark judgment on a rather simple and obvious constitutional question. The Court has settled the law and any further litigation by judges who want to overstay and break the law will obviously be in bad faith. It is high time Justices Tunoi and Rawal looked themselves in the mirror and seriously considered what they see staring back at them.

Despite their undistinguished careers in the legal profession and the modest gains they made on the Bench, it will be foolish, even though it is not to be expected that they can understand it, to be remembered as two judges who refused to leave the court despite the clear and express provisions of Article 167 of the constitution that sets the retirement age of 70.

They should instead strive to be remembered as two judges who cut their loss when they faced the reality, the law and a determined Judicial Service Commission and retired in obedience of the court order. That one sentence footnote is all they deserve in history. And even then, it is a footnote the people of Kenya will write grudgingly.