Law Society of Kenya wants Supreme Court scrapped

The Law Society of Kenya (LSK) now wants the Constitution amended to abolish the Supreme Court in a dramatic escalation of the dispute on the retirement age of judges.

The lawyers' agency also vowed to press for the removal of three Supreme Court judges - Mohamed Ibrahim, Jackton Ojwang and Njoki Ndung'u - whom it alleged boycotted work in protest over the directive by the Judicial Service Commission (JSC) that judges retire at the age of 70. But the judges have denied absconding duty.

On Monday, Deputy Chief Justice Kalpana Rawal, judges Njoki Ndung'u, Jackton Ojwang and Phillip Tunoi ruled that JSC had no legal mandate to compel judges to retire at 70.

JSC Chairman and Chief Justice Willy Mutunga distanced himself from the ruling made on Monday in a dissenting opinion.

Yesterday, LSK in a statement sent to newsrooms argued the Supreme Court was unnecessary as its role could be played by the Court of Appeal on a temporally basis.

Law Society Of Kenya Chairman Eric Mutua during the launch of a book "The Dragon's Trap: Kenya's Politicised anti-corruption architecture on August 19th, 2015. (PHOTO: ANDREW KILONZI/ STANDARD)

"Time has come when the country should start a debate on whether the Supreme Court is desirable. Through constitutional amendments, Court of Appeal judges or an ad hoc Supreme Court may perform the role of the Supreme Court," said LSK President Eric Mutua.

LSK has been backing JSC's decision to have judges who have clocked 70 years stay away from courts. But judges who took oath of office under the old constitution and hold that their tenure was secured until the age of 74, have opposed the decision.

Internal wrangles have been simmering and the only Supreme Court judge who has remained mum over the matter is Justice Smokin Wanjala. He sits in JSC as a member representing Supreme Court judges.

The debate on whether judges should retire at 70 or 74 years has sparked controversy within the Judiciary because it has implications on the composition of the Supreme Court, which is the final arbiter and interpreter of the Constitution.

Two Supreme Court judges – Rawal and Tunoi – are fighting the decision by JSC to retire them at 70. With Mutunga promising to retire in six months, the Supreme Court is left with justices Ndung'u, Ojwang, Ibrahim and Wanjala who will now have to fight the new call.

"LSK shall renew and fully support the petition before JSC for removal of office of the three judges from the Supreme Court," Mutua added.

"It was wrong, irregular and in bad faith for the judges to have decided to constitute an issue for determination based on a letter written by an advocate who had merely requested for expediency in delivery of a judgement. The said letter did not form a part of the record in the petition," he said.