Three cases are pending in the Constitutional Division of the High Court where sitting judges have questioned their age of retirement under the Constitution. Whether the Supreme Court (SC) on October 19, 2015 disregarded the established doctrine of sub judice, and whether it gratuitously decided issues not in its purview and sat in a matter which the judges had an interest, are concerns for academicians and jurists.
The SC stated: “We find and hold that the Judicial Service Commission lacks competence to direct or determine how, or when, a judge in any of the Superior Courts may perform his or her judicial duty, or when he or she may or may not sit in court. It follows that the said directive concerning judges of the superior courts, issued by the Judicial Service Commission, is a nullity in law.”
On my part, I will not make any comment on the merits or demerits of the ongoing cases but it is clear that the losing parties will most certainly run to the Court of Appeal, unleashing an unprecedented legal drama.
The first question the lawyers will need to answer is whether there is a right of Appeal from a decision of a Constitutional Court. This is a moot point as there is a strong argument that the law does not provide for an Appeal from a Constitutional Court. Some lawyers argue that the Constitutional Court is even superior to the Supreme Court.
Another tangent of the argument is: Can JSC raise the matter of Supreme Court decision in a Constitutional Court? The profound reality of the legal jigsaw is that the Constitution has seemingly and unwittingly created a court superior to the Supreme Court under Article 23(1) as read with Article 165.
For sake of argument, let us say that the aggrieved party in the Rawal case will indeed have a right of Appeal which ordinarily should take about four years to be heard if the case is not fast-tracked and made to climb the backlog ladder. Will there be no DCJ for the time the appeal is pending?
Next crucial question: will the aggrieved party from the Court of Appeal appeal to the Supreme Court? If the answer is yes, then is it not a fact that there will be no Supreme Court Bench legally capable to hear the Appeal? There will no doubt be a new Chief Justice, Justice Tunoi will have exited on reaching 74 (and all things being equal, replaced) Deputy Chief Justice Rawal will have been surely replaced. Two judges, Justices Ojwang and Ndung’u having made a decision in the matter stand reclused on the second principal of doctrine of natural justice; bias. There will be no full bench available to hear the Appeal. The matter will even become more complicated if the aggrieved parties demand a full bench of seven judges.
Now comes another twist. Justice Smokin Wanjala is a member of the Judicial Service Commission. Surely, he will not be able to sit in the Supreme Court adjudicating on a matter in which his constituent body is a party?
Let us for the present forget the retirement age saga and move to another real possibility. Assume that Justices Ibrahim, Ojwang and Ndung’u desire to vie for the post of DCJ or CJ. The JSC by law must make recommendations to the President on who may be appointed as the CJ and DCJ.
So the applicants to the post of CJ and DCJ will be interviewed and vetted by JSC and will be at the mercy of JSC. Will the JSC be able to give the Supreme Court Judges a fair chance or will the members of JSC remember and echo the words of the three applicants who arguably have been on a confrontational path with JSC? Will the letter written by the three judges, call it the strike threat letter, be held against the applicants? Have the three judges put paid all their chances of ever becoming CJ or DCJ by their conduct?
The case of one individual – Supreme Court Judge Smokin Wanjala – is very interesting if he were to apply for the post of CJ or DCJ. He was not in the Supreme Court bench of five, which alluded to the JSC’s role, but being a member of JSC, he is caught in the dust of conflict. On the one hand he constitutes the JSC as Respondent and is impliedly at loggerheads or say in opposition to the over 70 year class. Will JSC colleagues give justice Wanjala a warm hug and recommend him against other applicants?
The sad and uncalled-for call to scrap the Supreme Court by the Law Society, which has two representatives in JSC, is preposterous when for decades advocates clamoured for a four–tier judiciary but the intrigues, indeed the web, of confusion, within JSC continues to raise eyebrows.
What is clear, however, is that Kenyans must devise mechanisms where the Judiciary’s image is not seen to be tainted. Open and public conflicts cannot auger well, and judges judging the judges is the last thing our fledging judicial system needs.