Supreme Court judges, by their foul edict, succeeded in soiling themselves in the open

The issue of the retirement age for judges has, once again, put the Judiciary on the spot. But unlike before, it has laid bare the intrigues and power struggles, especially in view of the impending exit of the Chief Justice, the self-preservation of serving judges in relation to laws that may affect their terms of tenure, and utter lack of self respect by some of the longest serving judges.

Debate on this issue has been on since March last year when the Judicial Service Commission (JSC) resolved that the retirement age for all judges would be 70 years irrespective of whether or not one was hired under the old Constitution, which had given 74 as the age limit to which a judge could serve.

Thereafter, the JSC served Supreme Court (SC) Justice Philip Tunoi with a notice requiring him to retire on June 3, 2014. His High Court counterpart, Justice David Onyancha was equally served and required to retire on June 2, 2014 even though he had attained the age of 70 the previous year, sparking off a battle that has since exposed the underbelly of the Judiciary under Chief Justice Willy Mutunga.

That the two would object to the decision to retire them did not come as a surprise; their colleagues Samuel Bosire, Riaga Omollo and Emmanuel O’Kubasu, faced with the vetting axe, fought to the bitter end, exhausting all avenues that would rescue them. But that Tunoi and Onyancha would engage in a legal tussle over the same took the JSC aback.
The two judges filed a joint suit in the High Court where they sort a determination that the proper retirement age for them was 74 as they were appointed under the old Constitution. What is in four years that a 70-year-old Judge of the highest court in the land, having served as a judge for 30 years, 20 of them the Court of Appeal, would risk appearing before an inferior court for?

Boiled over
According to the Kenya Law Reports’ judicial profiles, Justice Philip Tunoi was appointed to the inaugural Supreme Court on June 11, 2011. He had previously served as Judge of the Court of Appeal since 1993 and as High Court Judge since 1987. Are they (the four years) worth soiling an illustrious career spanning four decades?

Justice Tunoi graduated with a bachelor’s degree in law from the University of East Africa, Dar-es-Salaam, after which he was admitted to the Roll of Advocates in Kenya. He holds a master’s degree in philosophy from the University of Nairobi, where he also recently, in 2013, completed his doctoral degree in the same discipline. He served as the Provincial State Counsel for Nyanza and Western provinces from 1970 to 1973 before going into private practice until 1987.

In the High Court, a third judge, Justice Leonard Njagi, who had been found unsuitable to serve after vetting by the Judges and Magistrates Vetting Board, and who was also a subject of retirement notice, filed a separate suit challenging both decisions. The Chief Justice certified the cases raised substantial questions of law and ordered a hearing before an enhanced bench of five judges and also ordered that the suits be heard as a priority and be consolidated.

Justices Tunoi and Onyancha, however, went to the Court of Appeal and opposed the decision to consolidate the two suits. The Court of Appeal suspended further hearing of the suit before the High Court, pending its own determination. It made its order in June and also ordered an accelerated hearing of the appeal. However, the order on acceleration relies on the efforts of Justices Tunoi and Onyancha “who have no inherent incentive to seek an accelerated hearing”.

It is at this point the JSC and other stakeholders in the legal fraternity must have realised they were in for a rude shock. What the JSC in particular did not anticipate is the extent to which the Tunoi-Onyancha case touched on the nerves of some of the sitting judges. It was only a matter of time before it boiled over, with Deputy Chief Justice (DCJ), Kalpana Rawal’s as the matchstick that would spark it off.

Stalking CJ’s seat
Justice Rawal had been observing the retirement soap opera play out in the corridors of justice with vested interest. Behind the scenes, she had refused to go on a long overdue leave. Her game plan was to hang on and assume the reigns of the Judiciary, even just for a year or two. It is too close for her especially now that Justice Mutunga has made public his intentions to retire mid next 2016, a year before his mandatory age. If he makes good his promise, Rawal’s dreams are only a stone’s throw away. As such, she has too dug in.
In August, reawakening to a dress down by Senior Counsel (SC) Ahmednasir Abdullahi during a meeting alongside the judges’ annual colloquium in Mombasa regarding the issue of retirement age for judges and its consequences if not adequately addressed, the JSC swung into action. Riding on Attorney-General Githu Muigai’s concurrent advisory with SC Abudullahi’s views, the JSC kicked off the process of replacement of the DCJ and barred all judges who had attained the age of 70 from sitting.

Like her Supreme Court colleague, the Deputy Chief Justice saw nothing wrong with prosecuting her cause before her juniors. There is nothing wrong with that legally, but decorum and self-respect would dictate, especially where it is four years against an illustrious career of many years, that an honourable judge would bow out with grace – what, with the JSC offering the affected judges a send-off package, besides other benefit and perks equivalent to what they would have earned in the remaining four years.

However, the JSC, and indeed the legal fraternity, was yet to see the last of the drama in the Judiciary. The Supreme Court, in an unprecedented way, entered the fray. Three of the seven Justices of the highest court in the Kenyan jurisdiction went on a go-slow in support of their two colleagues in the retirement age debacle. Justices Njoki Ndung’u, Jackton Ojwang and Mohammed Ibrahim told the JSC in writing that the action on their colleagues was illegitimate and interference with the work of the Court. The three temporarily withdrew services in protest, effectively paralysing the Supreme Court since the minimum quorum of the Court is five, and affecting up to more than 20 cases.

‘Comrade power’
The remaining two judges, Dr Mutunga, who is also the CJ and President of the SC, is a member and chair of the JSC, together with Justice Smokin Wanjala who represent the SC in the JSC. In essence, the three dissenting Justices blatantly told off their two colleagues in the JSC. Technically, they usurped the powers of superior courts and jumped the gun on a matter that was appropriately before both the High Court and Court of Appeal.
The Justices of the Supreme Court are not ordinary judges; they are judges of the topmost court. Their opinion on a legal matter, official or not, counts for something in the corridors of justice.

It is for such reasons that in jurisdictions that cherish the jury system, sitting jurors are secluded from external influence, denied access to media and parties to the case so that their thinking is not contaminated and manipulated. Here is a case where Supreme Court judges, who should know better than all else, have thrown caution to the wind, all, in the name of comradeship.

Legally, the judges may not have broken any law in their actions of dissent. However, the Supreme Court was set up in a manner that it should provide leadership in the Judiciary. Their actions, by commission and omission, should set precedent in the hierarchy of the Judiciary. Theirs is an exalted position that should all the time be a point of reference not only in the Judiciary, but also in society. Picketing is the last of options the Supreme Court Judges would want to employ to solve problems.

Betrayed their benefactor
Inadvertently or otherwise, the actions of Justices Ndung’u, Ojwang and Ibrahim are a betrayal to the Chief Justice. They may have forgotten, but anyone who followed, especially the vetting of Ojwang and Ibrahim, knows that the Chief Justice fell on the knife for them.

They both had stinging issues of case backlogs while they served as High Court judges. The CJ stood firm on their behalf as he released them to go and clear the backlog, drawing sharp criticism from the Law Society of Kenya and other stakeholders.

Justices Ojwang and Ndung’u joined forces with Rawal and Tunoi, in LSK’s words, “in yet another act of defilement of the Constitution and in violation of the established judicial tradition…” They detoured from the issues for determination by interrogating and making a determination based on issues raised in a letter of complaint in Petition No. 23 of 2015. In the letter, the advocate complained of delivery of judgement but also expressed fears that the directive by JSC in relation to sittings by judges who have attained the age of 70 may negatively affect the delivery of the said judgement.

The judges, in a majority ruling of four against one (Justice Mutunga), ruled that the complaint letter was a matter of judicial notice that qualified for cognisance before the court and to be attended with appropriate, responsible orders, and went ahead to determine as follows.

“This court takes the position that the security of tenure by all judges under the Constitution of Kenya, 2010 is sacrosanct, and is not amenable to variation by any person or agency, such as the Judicial Service Commission… the Judicial Service Commission lacks competence to direct or determine how or when a judge in any of the Superior Courts may perform his or her judiciary duty, or when he or she may or may not sit in court. It follows that the said directive concerning judges of the superior courts, issued by the Judicial Service Commission is a nullity in law.”

Arbiters in their own case
The zeal with which Justice Ojwang read the determination has not been seen of him for the entire four years he has served in the SC. This despite the fact that two of the judges party to this decision, Rawal and Tunoi, have a case pending in the High Court, seeking determination on the directive by the JSC in respect of their retirement age, where they argue that JSC’s requirement is unconstitutional.

“Instead of awaiting the determination of their cases by the High Court, the two judges decided to take a short cut by sitting in their own case. They became judges in their own cause,” decried the LSK in a press release to the media. The lawyers’ body has since, in a radical move, called on the disbandment of the SC altogether.

The call for the disbandment of the SC may not suffice, but the stunt the five members of the court have pulled off has brought disrepute to the highest Court, and spewed disrespect towards the Chief Justice in particular and the JSC in general. Clearly there is a division in the court, which may bring about alignments in the entire Judiciary. How this pans out, only time will tell.

The Supreme Court, however, had the opportunity to express their displeasure with the CJ and by extension, the JSC, in a much better way that would have shielded the Court from ridicule and the entire Judiciary from disrepute.