The country could fall into a judicial crisis in coming months that could drive Supreme Court, the highest court in the land, to a temporary halt.
Just weeks before Chief Justice Willy Mutunga retires next month, the process of picking his replacement looks bumpy.
Law Society of Kenya (LSK) has filed a case at the High Court challenging the procedure of picking Dr Mutunga’s successor as enacted by Parliament.
Highly placed sources in the Government told the Standard on Sunday that the State will appeal should the matter flop at the court.
LSK President Isaac Okero, however, would not comment on the matter except to say: “We will let you know what decisions we shall make once a ruling on this matter has been delivered.”
It is the ultimate outcome of this petition that will give the Mutunga succession process a clear bearing since it cannot take off until the case is settled. The court will be ruling on an amendment on the JSC Act, which now requires that the commission picks and forwards three nominees to the President for appointment as opposed to one.
JSC has already indicated the process will have to wait until the CJ retires on June 16. The vacancy is communicated by way of a gazette notice.
Similarly, two Supreme Court judges Justice Philip Tunoi and Kalpana Rawal are in court over retirement age, with Tunoi facing a tribunal over a bribery saga. Justice Muhammed Ibrahim is sick and receiving medical care in South Africa.
The quorum for the Supreme Court is five. When Mutunga retires, the number of sitting judges will be five given that Tunoi is suspended. They are Ibrahim, Justice Jackton Ojwang, Justice Njoki Ndung’u, Justice Smokin Wanjala and Deputy CJ Kalpana Rawal.
But Rawal, who would naturally take over Mutunga’s functions, is herself battling a court case with JSC over retirement age. Should the court uphold JSC’s decision to retire her, then Supreme Court will have to shelve all cases until a new Deputy Chief Justice is appointed because of a quorum hitch.
City lawyer Ken Ogetto, however, says the events surrounding the succession politics and retirement present the possibility of a mix-up within the Judiciary. “Potentially, there would be a reason to fear that a vacuum will be created and perhaps this could be the beginning of a constitutional debacle,” he notes.
Leader of Majority in the National assembly Aden Duale has weighed in on the matter, blaming JSC for failing to offer leadership. “There is obviously likely to be a big crisis in the Judiciary. The outcome of the retirement case against Tunoi and Rawal on June 27 is what will determine whether the Judiciary will sink into that crisis or not,” he says.
“You see even if Rawal case goes well for her, she can only act as Chief Justice for three months. This is a classic case of failed leadership by JSC because they obviously anticipated the events as they are unfolding now. They should have planned for a smooth transition.”
But Samuel Chepkonga, the chairman of the Parliamentary Departmental Committee on Legal Affairs, says all conversations on the CJ succession are theoretical at the moment and as such, one cannot conclude that there would be a crisis.
“There is actually no crisis as we speak and I personally don’t foresee one in future unless JSC wants to create one. It’s an issue of ‘supposing this happens, supposing this doesn’t happen’. I think what one would be asking is supposing the Court of Appeal finds that judges should retire at 70, what would happen to all the rulings judges who are beyond 70 have made,” argues Chepkonga.
Mutunga announced his decision to retire early is meant to allow the incoming CJ enough time to understand the institution before next year’s General Election.
But given the turbulence the process of picking his successor is going through, it might well be that new CJ may not have all that time before the elections.