Judiciary sliding into paralysis as top judges fight for survival

The country was last night sliding into an assured judicial and political paralysis after two Supreme Court judges moved to their own court to challenge an order on them to retire.

Barely hours after a seven judge Court of Appeal bench ruled that they must retire, Deputy Chief Justice Kalpana Rawal and Judge Philip Tunoi rushed to the Supreme Court and obtained conservatory orders from the duty judge Lady Justice Njoki Ndung’u.

“What we witnessed today is a gangster approach of doing things. The conservatory order itself is null and void. One judge cannot purport to issue a conservatory order against the known rules of the court. I will personally fight the order,” said lawyer Apollo Mboya.

Further, Mboya said he will file misconduct proceedings against Justice Ndung’u. A process of getting at least two other Supreme Court judges to review Justice Ndung’u’s order will be commenced simultaneously with constitutional court action.

The fast move sent shock waves as legal minds predicted a definite legal quagmire because the country’s top most court is itself, in observers’ views, mired in myriad of issues which predispose it against hearing the matter.

Foreseeing this eventuality, the Commission on Administrative Justice, popularly known as the “Office of the Ombudsman” issued an advisory opinion as early as January 5, 2016 warning against dragging the Supreme Court into the matter.

“The decision of the Court of Appeal ought to be accepted as final in the interest of justice. A further appeal to the Supreme Court would be inappropriate and riddled with conflicting interests. This is because of the seven judges of the Supreme Court, two including the Chief Justice are members of the JSC who took the view that retirement of judges ought to be at 70; two other judges are the subject of the appeal, while the remaining three judges were part of the bench that expressed the opinion that the judges ought to serve up to 74 years,” the advisory reads.

Lack of quorum

Chief Justice Willy Mutunga chairs the JSC and is retiring in two weeks’ time while Justice Smokin Wanjala represents the Supreme Court at the JSC.

Judges Ndung’u – who issued the conservatory orders yesterday – Jackton Ojwang’ and Mohamed Ibrahim were part of a five-judge bench which controversially pronounced themselves on the question of retirement and nullified the JSC letter asking Tunoi to retire.

Their pronouncement is the subject of a tribunal proceedings lodged against them by Mboya, a former Law Society of Kenya (LSK) CEO.

Late last year, Mboya lodged a petition against the three judges for allegedly “misdirecting themselves” into the retirement matter and against the two affected judges (Tunoi and Rawal) for pronouncing themselves on a matter they had a direct interest in.

Mboya’s petition also accused the judges of withdrawing their services through a moratorium declared on JSC through a formal letter. Earlier this month, JSC affirmed Mboya’s claims against the five judges and made a finding of misconduct against them.

The first leg of Mboya’s petition – of the five judges misdirecting themselves into the matter of retirement – is still up for determination by the JSC while Mboya is pushing forward the case for misconduct by requiring the JSC to forward the report to the president so that he can form a tribunal to remove them from office.

“Not unless someone simply wants to deliberately create a gridlock, one cannot appeal this judgment on both procedural and moral grounds,” Mboya said.

Controversial lawyer Ahmednasir Abdullahi said the pair cannot purport to appeal the matter in the Supreme Court because it lacks quorum at the moment, with the exit of Mutunga in two weeks and absence of the aggrieved judges.

“They must be told that they cannot serve the Judiciary by force. They are past 70. Tell them to go, go, go home. Supreme Court has no quorum and people should not play games in that court,” Ahmednasir said yesterday. In 2013, Ahmednasir presented a controversial paper at a judges colloquium in Mombasa in which he predicted an implosion of Supreme Court if the issue of retirement age was not settled in time.

“This is a scandal the Judiciary is hell-bent in covering up but it will explode on its face and will have wide national political ramifications,” Ahmednasir said in the paper titled “The limits of prescriptive reforms: The struggle and challenges of judicial reforms in Kenya, 2002 to 2010.”

Lawyer Charles Kanjama, who was acting for the JSC in the suit, said the two judges have a right to appeal to the country’s highest court as a matter of exercising their fundamental rights and freedoms. He, however, said it is not in public interest for the pair to appeal the decision.

“I do not want to say that the Supreme Court is implicated in this. I should say it is more directly affected by this decision. Two of the judges are aggrieved parties; one of them is the chair of JSC and the other a member of JSC. The other three wrote a protest letter on retirement matter which subsequently led to a moratorium of services and a petition being filed against them,” he said. Kanjama notes that the Court of Appeal bench was empanelled with seven judges: “To the best of my knowledge, this has only been done once before - in 1998 during the contempt proceedings against Tony Gachoka. Clearly you can see the effort placed to settle this matter at this level.”

Bribery allegations

As to what becomes of Justice Tunoi, who is currently facing a tribunal to remove him over bribery allegations, Kanjama says the tribunal will have to go on once served with the conservatory orders. Yesterday’s moves came as a new poll by Ipsos Synovate showed that majority of Kenyans (83 per cent) still trust the Judiciary to handle election disputes. In terms of CORD and Jubilee comparisons, more CORD supporters (87 per cent) had more trust in the Judiciary than Jubilee (82 per cent).

The poll also shows few Kenyans (36 per cent) trust the Supreme Court to handle the presidential petition without political interference. In terms of Jubilee and CORD, more Jubilee supporters trust the Supreme Court to deliver without interference (50 per cent) compared to CORD’s 27 per cent.