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After five years of existence, Kenya's Supreme Court finds itself at crossroads

By Wahome Thuku | June 13th 2016

NAIROBI: Never in its five-year history has the Supreme Court been at a legal crossroads, as it has been in the past three weeks.

And tomorrow, the highest court in the land will be make a ruling that will likely alter the face of the Judiciary forever.

The five-judge bench of Chief Justice Willy Mutunga, judges Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung'u will be deciding whether they have moral authority to hear and determine a case filed before them by the Deputy Chief Justice and Vice President of the same court, Kalpana Rawal, and colleague Justice Philip Tunoi.

The two are appealing on a judgment of the Court of Appeal declaring that all judges must retire at the age of 70 as set out by the Constitution and not 74 as provided by the old Constitution under which they were first appointed.

The bench will not be determining the age question but on an objection by political activist Okiya Omtatah to hear the case in the first place. He argues that none of them can determine the case as they have conflict of interest in more ways than one.

To many legal analysts, it was only a matter of time before the hidden conflict of interest within the Supreme Court and between the court and other judicial organs such as the Judicial Service Commission (JSC) surfaced. It was not, however, expected that the dragon would be brought to the fore by the very judges of the court.

The retirement dispute arose when JSC issued a notice to all the judges who were approaching 70 years to start packing. Two of them were judges Rawal, 70, and Tunoi, 72.

The first point of notable conflict was on the fact that JSC is chaired by Dr Mutunga, who is also the President of the Supreme Court. Justice Wanjala is also a member of the JSC. So conspicuous has been that element of confliction that in last week's JSC meeting called to discuss the Rawal/Tunoi matter, the two judges decided to stay out.

It is argued that, by virtue of being JSC members, both Mutunga and Wanjala were party to the decision requiring all judges to retire at 70, hence they are unsuitable to determine the same matter at the Supreme Court.

Another element of conflict is between Justices Ibrahim, Ojwang and Ndung'u on one side and JSC on the other.

The three have made their position known that JSC cannot be involved in dealing with the tenure of judges which is set by the Constitution. They are said to have stood in solidarity with their two colleagues.

Former Law Society of Kenya Chief Executive Officer Apollo Mboya petitioned JSC to start a process of removing them from the Judiciary. Justice Ndung'u went to the High Court to stop JSC from starting the investigations but failed.

JSC is now a party before the same judges, being a respondent in the case filed by Rawal and Tunoi. This raises the question as to whether the judges can fairly adjudicate the matter.

The ruling will determine whether the Rawal and Tunoi cases will go to full hearing, if the judges decide they have the mandate to do so. The key question will be whether the court can pull itself out of such a matter, being the highest judicial arbitrator in the land. Would doing so precipitate a constitutional crisis and how would the decision affect the lower court confronted by similar issues in future?

Should the judges down their tools and decide they are too conflicted to hear and decide the cases, the decision of the Court of Appeal will stand and both Rawal and Tunoi will leave the Judiciary.

Apparently, that would be two days before Mutunga's retirement on Thursday. The departure of Mutunga, Rawal and Tunoi would leave a shell of a Supreme Court with four judges. The Constitution requires that a minimum of five judges must sit to constitute a bench of the Supreme Court to decide on a case.

Other lower courts would also be affected in that cases that require the CJ to constitute benches to hear them, would be halted. But the real question as to whether judges appointed under the old Constitution should retire at 70 or 74 will remain unresolved, hence will keep coming up. It may even be raised sooner by Judge Ibrahim, who is now 69.

Whichever the decision the judges make the Judiciary and the Supreme Court in particular will never be the same again.

The writer is an Advocate of the High Court of Kenya

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