The Court of Appeal decision on the retirement age of judges of the High Court, Court Of Appeal and Supreme Court sets a powerful precedent, but also has several legal, political and judicial ramifications.
From the outset, this matter is Appealable. The bigger question is whether the Supreme Court as currently constituted, can hear such an appeal. The difficulty in constituting a Supreme Court Bench is both Herculean and totally impractical for the reasons that the Chief Justice is due to retire on June 30 and I doubt he would be willing to sit on another explosive appeal, which could drag on and on.
Secondly, the Deputy Chief Justice Kalpana Rawal and Justice Phillip Tunoi are the litigants on the issue of retirement age. The dictum that you can’t be a judge in your own case will effectively apply against them and so they can’t sit and hear their own case. Any attempt by any of the two judges to sit could invite serious questions of misconduct.
Thirdly, unless the Court of Appeal grants them stay to proceed to the Supreme Court then they are no longer judges and can no longer discharge the functions of a judge. The case in my view for all legal and other practical purposes is ended at the Court of Appeal.
The decision is important in the sense that it frees the hands of the Judicial Service Commission to move with speed and advertise the positions of the Chief Justice and Deputy Chief Justice so that those vacant positions can be filled pronto. They no longer have excuses because the impediment has now been removed by the Court of Appeal judgement.
The questions the litigants would be asking is what is the juridical value of the judgements, which had been delivered by these retired judges. Does the order of stay granted to Rawal and Tunoi in the High Court and Court of Appeal bestow a constitutional mandate to hear the cases they continued hearing?
When Justice Tunoi tribunal was set up to inquire into the conduct of the Supreme Court judge, the explanation given was that his case on the retirement age was yet to be determined and now that the case is done and dusted Tunoi is no longer a judge? Can the Tribunal continue with the proceedings inquiring into the conduct of a man who is not a judge?
What happens to Tunoi quest for justice on the premise that he is an innocent man? These are serious legal ramifications that may find themselves back to court for determination on the constitutional grounding of the tribunal.
The immediate and imminent impact of the decision is the creation of vacancies both at the High Court, Court of Appeal and the Supreme Court. The JSC must immediately embark on recruiting new judges because the country can’t afford to have vacancies in the Judiciary for too long.
The General Election is slated for next year and issues of determination of electoral matters require a judiciary with sufficient personnel otherwise the country will suffer as the cases lag. The Supreme Court is expected expected to determine any challenge on the outcome of the presidential poll.
Finally, the decision sets in stage the political jostling between the Government and the Opposition. Already the Opposition in one of their demands has called for a stronger Supreme Court. The two parties will be quietly lobbying to ensure that the people who get appointed to the Court of Appeal and Supreme Court are friendly. This is where you will require a JSC that is completely independent and can say no to manipulation by powerful forces. The question is can the JSC resist manipulation? The Jury is still out.
The decision is good because it captures the aspirations of the people of Kenya when they voted for the 2010 Constitution. The spirit and the letter of the Constitution is that judges retire at 70 and not 74.
The issue of transitional clauses were taken care of when they swore to defend the Constitution. The Court of Appeal judgement has covered both the transitional clauses and the letter of the current Constitution. The judges who have served their country until 70 years have served their Country well. They deserve honour and respect but as William Shakespeare says, the world is like a big stage and we are all actors. We have our entry and we have our exit. It is time to exit the stage.
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