The Supreme Court last night appeared to be drawing the curtains on the tenures of Deputy Chief Justice Kalpana Rawal and judge Phillip Tunoi.
Separate rulings read yesterday appeared to lean towards the retirement of the two judges.
Justices Mohammed Ibrahim and Smokin Wanjala gave a strong indication that a majority opinion will uphold the judgement of the Court of Appeal that judges in Kenya have to retire at the age of 70, and not 74 as Tunoi and Rawal had contended.
Judges Wanjala and Ibrahim gave a similar verdict; that they could not entertain the appealson account that Ibrahim expressed his mind before that judges should retire at 74, Judge Wanjala voted in the Judicial Service Commission that his colleagues should go home at 70.
With Chief Justice Willy Mutunga being the chairman of the JSC, and having advertised for the position of Rawal because she was due for retirement, it appeared like the fate of Tunoi and Rawal was sealed.
If, as expected last night, the Chief Justice throws in his lot with Ibrahim and Wanjala, the orders of the Court of Appeal which required Rawal and Tunoi to go home would prevail.
On the other hand, judges Njoki Ndung’u and Jackton Ojwang held a counter verdict that the court could entertain the case as the objections raised could not weigh in against the rights of the two judges to be heard by all courts in the judicial system if they were aggrieved.
No powers
They both questioned the CJ’s intervention, noting that he had no powers to shift the hearing dates from June 24 to June 2.
Justice Mohamed Ibrahim, in his ruling, noted that he would be perceived not to be fair if he sat to hear the case by his colleagues.
He noted that although he never participated in the Nick Salat case where the court was divided on whether judges should retire at 70 or 74, he was involved in drafting a memorandum which expressed a stand which would be perceived that he was impartial if he sat to hear the case.
“It is with a heavy heart that I disqualify myself from hearing any application emanating from the two cases (appeals by Rawal and Tunoi),” he said.
Ibrahim said that his powers were given by the public and the interest of the same people superseded his own or any other right of an individual.
The judge upheld the application for recusal by activist Okiya Omtatah, who argued that none of the judges in the Supreme Court was in a position to hear the appeals by the two senior judges due to perceived conflict of interest.
Judge Ibrahim noted that he had warned of disaster of a seven-judge composition back in 2012 when he noted that the number would bring up the current crisis in case a judge was sick or disqualified.
His stand was that the country should increase the number of judges in the apex court to a nine minority and 11 maximum, just as South Africa had done, to avert any scenario where the court could not deliver on its mandate due to lack of quorum.
Judge Ojwang was second to read his verdict. In his ruling, the judge noted that the Supreme Court had the greatest challenge ever as it was giving a decision regarding vested interest whereas the rights of individuals were also involved.
The judge, however, threw out Omtatah’s application noting that it did not meet the threshold.
“Mr Omtatah’s does not qualify as a preliminary objection and thus it’s dismissed on that basis. I hold that this Supreme Court has jurisdiction to proceed with the call now before it and proceed to the matters, including conservatory orders,” Judge Ojwang ruled.
He said that the two judges, Rawal and Tunoi, had a right to have their case before the Supreme Court and to fair trial.
Judge Ojwang termed the application by the activist as a generalised claim, which could not deter the court from sitting and making a final finding touching on its two judges.
“Accordingly, notice of preliminary objection of Mr Okiya is dismissed. The hearing shall proceed to the second stage and lastly cost shall abide to the case,” he ruled.
Judge Wanjala, who was third to read his ruling, held that the orders by Judge Njoki had technically overturned the decisions by the two lower courts and given the two judges an opportunity to serve in their respective capacities up until another Bench was constituted.
The judge did not fault his boss, the CJ, for fast-tracking the hearing of the case in order to clear the cloud before he leaves office Thursday.
He said that the stalemate in the Supreme Court will have “dealt it a major blow of its legitimacy” and become a laughing stock in the public eye.
“The directions of the CJ were purely administrative and were invoked for the interest of this case. How could the applicant be aggrieved when the case was expedited, where is the violation of the Constitution in this?” posed judge Wanjala.
He dismissed the two applications by Rawal challenging the CJ’s powers to change the hearing from June 24.
He, however, upheld the objection by activist Omtatah noting that he had voted, in the JSC, for his colleagues in the Judiciary to go home at 70 and at the same time expressed his views on the same matter.
“Membership to JSC does not automatically disqualify a judge from hearing a case but there arises a scenario where the conflict of interest is raised. I am afraid to declare that this is a situation I find myself. Not only did I vote that the judge should retire at 70, I also expressed myself in informal occasions on the matter,” he said.
Competent bench
Judge Wanjala said the judgement of the Court of Appeal should take effect up until a competent Bench was empanelled.
Judge Njoki read her decision after Wanjala. She ruled that she had properly given temporally orders and that her boss, the CJ, erred by taking up the matter. She said that Kenyans did not intend to give Mutunga excessive powers to trample on his colleagues in the apex court.
She said that only a five-judge Bench was supposed to review her decision.
“The orders given were valid court orders. Taking the history of internal interference, we should guard the independence of judges. I respectively find that changing the hearing date on June 24, 2016, was in contravention of the Supreme Court Act and amounts to interference. The application (by Rawal) is allowed and parties shall bear their own costs,” she ruled.
Judge Njoki further ruled that jurisdiction was different from recusal and that the latter (recusal) do not fall under preliminary objection as Omtatah had applied.
“Its my conclusion, even though it raises interesting constitutional questions, however it does not meet the requirements for a preliminary objection and it therefore fails,” she ruled.
Conflict of interest
The lady judge ruled that the issue of bias was overstretched, as mere membership to JSC did not amount to conflict of interest adding that if Mutunga and Wanjala walked away due to the same, it would in turn paralyse the operations of the Supreme Court.
She indicated there was no law where the Court of Appeal had powers as the final arbiter on JSC matters due to perceived conflict of interest in the highest court in the land.
Judge Njoki said judges would at times have to adjudicate matters filed by their colleagues. She cited the Judges and Magistrates Vetting Board (JMVB) scenario where powers of that board to investigate issues after the 2010 Constitution were questioned until the Supreme Court.
On the letter to JSC by herself, Ojwang and Ibrahim complaining about the directive to have judges over 70 years out of courts, she ruled that they were raising the issue of lack of quorum if Tunoi and Rawal were sent home. She said this could not be a basis for her or the other judges to down their tools over bias.
“The letter does not create justifiable doubt and does not create direct conflict of interest,” she ruled.
She said that they all had no direct interest in the case, except for judges Tunoi and Rawal who were litigants.
Judge Njoki noted that the law does not provide a solution in a case where there was a void due to disqualification of a judge in the Supreme Court.
