Move to retire 38 judges sparks storm

PHILIP TUNOI           PHOTO: COURTESY

Kenya: Senior judges have been ordered to retire in a controversial decision that has sparked protests against the Judicial Service Commission (JSC).

The row centres around two conflicting constitutional requirements over the retirement age that affects 38 judges.

Already, three senior judges have received letters informing them that they are to retire after reaching the age of 70, as required by the new Constitution.

However, some of them argue that since they were hired under the old Constitution, which gave the retirement age as 74, they should be allowed to continue serving as agreed by the JSC in 2011.

They say officials have ignored JSC’s own recommendations and are now humiliating them. They have cited what they say is obvious double standards on the matter.

At least one judge has protested at the manner in which the JSC is handling the matter, saying a junior worker asked him to provide a copy of his national identity card and other sensitive personal documents.

Those who have received the letters asking them to vacate office on their 70th birthday include Supreme Court judge Philip Tunoi, Appeal Court judge John Mwera and High Court judge David Onyancha.

Appeal Court judge Onyango Otieno, said he received a retirement notice in September last year, informing him he would retire at 74.

Justice Tunoi told The Standard on Saturday: “I feel I have been mistreated, especially when the letter demanding retirement is brought by a junior member of the subordinate staff who also demanded a copy of my identity card, medical card and a copy of past pay slip among other documents.”

Justices Tunoi and Onyancha have now threatened to sue JSC, chaired by Chief Justice Willy Mutunga. Their lawyers, Ngatia & Associates, say in a letter dated May 14 that the retirement notices are “predicated upon a fundamental error of law.”

They demanded a response within three days.

“In the event that we do not hear from you within the stipulated period, we shall regrettably be constrained to institute court proceedings,” they said.

Also affected by the retirement saga is Mutunga’s deputy and Vice-President of the Supreme Court, Justice Kalpana Rawal, and fellow Supreme Court judges Jackton Ojwang and Mohamed Ibrahim.

This is an unwelcome distraction for the Chief Justice, only months after the JSC faced off with former Chief Registrar Gladys Shollei after she was interdicted over claims of corruption. A court eventually cleared her of any wrongdoing and ordered her reinstatement.

In a memorandum to JSC dated December 18 last year, judges demanded a clarification on whether four Supreme Court judges – Rawal, Tunoi, Ojwang and Ibrahim – should serve until they reach 70 or 74 years according to the two constitutions.

There were claims that the decision to retire the judges is driven by a battle over who will succeed Mutunga when he retires in 2017.

“The affected judges have four or more years to serve in the Judiciary, giving them a perfect opportunity to take over from Willy Mutunga,” a High Court judge who sought anonymity said.

In Justice Tunoi’s retirement notice seen by The Standard on Saturday, the Chief Registrar of the Judiciary Anne Amadi asks him to vacate office on June 3 this year, a day after he attains the age of 70.

He is also asked to provide a copy of his national ID, a clearance certificate, a declaration of income, assets and liabilities form, his last pay slip and medical cards.

“The JSC deliberated on the judges’ retirement age and resolved that all judges shall retire at the age of 70 years. Your honour, office records indicate that you will attain compulsory retirement age of 70 years on June 2, 2014, having been born on June 2, 1944,” Amadi writes.

However, a circular dated May 24, 2011, shows that the then JSC secretary Lydia Achode wrote to all appellate judges informing them that the commission had resolved that all judges who were in office on the effective date of the new Constitution would retain their retirement age of 74. The judges are now puzzled by JSC’s about-turn.

The Chief Justice did not pick calls or respond to a text message requesting a comment on the matter. However, a senior official, who asked not to be named, said: “The JSC has given policy guidance on the retirement age as 70 years, which position is echoed by various legal opinions including the Attorney General. This is an evolving matter and we will keep discussing.”

Justices Tunoi and Onyancha plan to file a suit against their employer any time next week after JSC failed to respond to a letter they had written.

The letter from Ngatia & Associates said: “… It would be prudent, in a bid to retain the public image of the Judiciary, for parties to agree to a mediation of this issue before a panel of eminent legal scholars whose decision will be deemed as conclusive.”

Alternately, the lawyers offered, “Parties could agree that you seek a determination of the issue from the High Court in proceedings where the affected judicial officers would be at liberty, through counsel, to make such representations as appropriate.”

Justice Tunoi, who has served for the past 27 years, says it is unfair and inconsiderate to be required to leave office in less than a month in complete disregard of his rights as a judge.

He faulted the procedure taken by JSC, adding that JSC’s action was discriminatory.

“There are judges who are 71, 72 and 73 years yet they have been allowed by the JSC to serve in the Judiciary. The JSC does not, in my view, have power to determine the retirement age of any judge simply by resolution. Their action against me is unconstitutional and illegal.”

Justice Onyancha could not comment on the matter extensively, saying: “My views are similar to those of Justice Tunoi. We are filing a High Court suit on Monday or Tuesday,” he said.