Chief Justice told not to retire early when Judiciary is in glitches

The Civil Society in Kenya has written an open letter to the Chief Justice Willy Mutunga asking him to cancel his decision of retiring early especially when the judiciary is in glitches.

The Chief Justice is set to retire in June 16, 2016 when two judges of the Supreme Court, Justice Kalpana Rawal and Philip Tunoi are in a case with their employer. The two judges hold that they were hired into the judiciary under the old law, but JSC contends that the Supreme Court judges are a creation of the new Constitution promulgated in 2010 and therefore, they have to retire at 70.

If the two retire as per the court of appeal ruling, and the CJ retires by choice, the Supreme Court functions would not go on for lack of minimum bench of five judges.

“We are appealing to you to reconsider the date of your retirement. The Supreme Court and your countrymen and women need you more than before. It will be an Act of ultimate sacrifice if you accepted to extend your stay at the judiciary for several months so as to settle this current crisis,” Morris Odhiambo, President of the National Civil Society Congress said.

Already, the JSC has advertised and called on applicants for the position of Chief Justice. The CJ has been asked not to rush into retirement leaving his office in a limbo.

The Judiciary crisis remains high, and the Law society of Kenya has been allowed to mediate over the Court of appeal decision to uphold JSC references that judges Rawal and Tunoi should retire at the age of 70 instead of 74 in accordance to the old constitution.

Speaking in a press briefing, Morris Odhiambo observed that while Judge Rawal only wants to retire in December 31, 2016 so that she gets the full retirement benefits, judge Tunoi seeks to retire after the probe against him over bribe claims by a Tribunal are concluded.

“The two judge’s issues are very personal and does not override the aspirations of over 42 million Kenyans,” said Odhiambo. NCSC press secretary Zac Momanyi said it will require the proverbial ‘Solomonic Wisdom’ to salvage the Court and its place in the hierarchy of courts as popularly agreed in the 2010 constitution.

In the event the honorable CJ rejects the open letter, Mr Odhiambo said the civil society shall compel him to accept through the JSC, so that through commissions’ framework; he can be compelled to hang on for six months.

Already, there is a suit filed in court challenging Dr Mutunga’s choice to retire early. The applicant has expressed that the CJ should not be allowed to retire early since he may leave the Supreme Court on fire.

“He shouldn’t leave office when the Judiciary is on fire, History will judge him harshly. He should extend his stay to his logical retirement and help resolve the contested issues in the judiciary. Dr Mutunga has done commendable job but Kenyans may forget and recall his rush to exit,” said John Wamagata.

Appealable Issues

Under article 163 sub article 4, the Civil Society has said it was not the intention of the constitution to have all appealable issues brought to the Supreme Court.

“Even if an issue is certified by the Court of appeal as appealable in the Supreme Court under sub-section 4, the Supreme court is still required to review the certification and either affirm it, or overturn it,” NCSC President said.

In the letter to the CJ dated May 30, 2016, says: “We take note of your chosen date of retirement that is June 16th 2016. This is roughly two weeks away. In opting for early retirement, you did articulate your intention to give the country and the responsible institutions sufficient time to select your replacement in view of the 2017 General Elections. “

The letter notes that the CJ intentions have been hijacked by Political interests that may not be motivated by the need to secure the integrity of the court and further strengthen the rule of law. Your succession has indeed become a high stakes game in the process. This is a Zero-sum game that must not be allowed to undermine five years of commitment to build a proper foundation for the Supreme Court and affirm the importance of its jurisdictional mandate.