NAIROBI: The Law Society of Kenya (LSK) has asked Chief Justice Willy Mutunga and the Judicial Service Commission (JSC) to intervene and end the uncertainty surrounding the retirement age for judges.
LSK Chairman Erick Mutua Monday said the current impasse on whether current serving judges should retire at the age of 70 years or 74, was likely to throw the country into a constitutional crisis.
"The question of the 2017 General Election is fundamental as two judges of Supreme Court will have retired by then. Suppose the uncertainty over the exact retirement age for judges is not addressed, what will happen in case of a presidential petition?" Mr Mutua (pictured) asked.
Deputy Chief Justice Kalpana Rawal is set to retire in January. Mutua asked Dr Mutunga to constitute a bench to hear and determine multiple suits pending before court on the exact retirement age for judges.
He said LSK's attention was drawn by JSC's September 5 announcement on the issue of retirement of judges who have attained the age of 70 years.
"The JSC has resolved that the respective judges will not hear and participate in any further proceedings until the case they have filed is determined. While the directive may have been issued as a cautionary measure to forestall any likely crisis that may arise as a result of judges serving beyond their mandatory age of 70 years, the same has the potential to affect the dispensation of justice in the Supreme Court, Court of Appeal and the High Court," Mutua told journalists at a press briefing at LSK offices in Lavington, Nairobi.
OATH OF OFFICE
Mutua said while LSK acknowledges that Article 167 (1) of the Constitution provides that a judge shall retire from office upon attaining the age of 70 years, and that all the current judges took a new oath of office under the current Constitution, LSK's position remains that the retirement age for judges is 74 years.
In March last year, JSC said the retirement age for all judges would be 70 years, thus reversing its own earlier decision that judges appointed under the old Constitution could retire at 74 years. Mutua said LSK is conscious of the fact there are active suits pending for determination on the retirement age of judges who were in office at the date of promulgation of the constitution.
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