Opinion is sharply divided over the Supreme Court row as lawyers hold that the damage done to its credibility cannot be redeemed.
However, the legal fraternity is happy that reforms initiated in the Judiciary, by outgoing Chief Justice Willy Mutunga will have a positive impact when the new leadership takes over.
Trouble in the Supreme Court started when the judges made their first pronouncement on the retirement of Justices Phillip Tunoi and Kalpana Rawal in the Kanu secretary general Nick Salat appeal.
After the pronouncement by Justices Njoki Ndung’u, Rawal, Jackton Ojwang and Tunoi, former Law Society of Kenya Chair Eric Mutua, in protest proposed that the country should hold a referendum to scrap the court.
“Time has come when the country should start a debate on whether the Supreme Court is desirable. Through constitutional amendments, Court of Appeal judges or an ad hoc Supreme Court may perform the role of the Supreme Court,” said Mr Mutua.
The same argument was advanced by lawyers Okweh Achiando, James Mwamu and University don Peter Onyango. They argued that the Supreme Court has lost its glory and the only way to redeem trust was by reconstituting it and appointing a fresh crop of judges.
Dr Peter Onyango, a law lecturer at the University of Nairobi, said the suitability of the judges to make judgements especially political ones will be put to question.
“The issues on the Supreme Court have an implication. All these taint the justice system and mind you it is the top most court. What comes out of it is that public confidence will be lowered,” Onyango said.
He added that different issues have come up in the Supreme Court at the same time, which is more challenging to handle. “The appeals on retirement age question need to be looked at the same time the Tunoi issue on corruption allegation is a quagmire that might also draw politics into it,” he said.
Mr Mwamu said as the elections draw near, the confidence of Kenyans in Supreme Court judges should be an issue to worry about.
He noted that few if not none would agree to move to that court with the issues that are currently unfolding. The lawyer said the top court in the land can only mitigate further damage by taking caution in the two appeals filed by its two judges.
“Depending on how they handle the matter, the reputation is already damaged. I do not see a crop of politicians who will accept to move to the Supreme Court the way it is. I doubt anyone will trust the remaining bench,” he said adding that things fell apart in 2013 when that court sat to determine the presidential election petition.
“The reputation started declining with presidential election question. The way they handled it did not seem fair and impartial. Looking at the Supreme Court, they need to reconstitute the entire bench, otherwise what happened is quite unfortunate,” he said.
In a rejoinder, lawyer Achiando said the Supreme Court has lacked all along in terms of enhancing interpretation and understanding of law (jurisprudence).
He proposes that the law should be changed to increase the bench to 11 judges, with a requirement that a minimum of nine should sit at one point. Mr Achiando noted that, although Supreme Court was higher in hierarchy than Court of Appeal, the legal logic was that five judges could not sit to overturn a judgement made by seven judges.
“Lets have 11 members in the Supreme Court. Who will agree to go there when they are doing what they are doing. When the Executive and Parliament fail, it is the Judiciary which upholds sanity, ours have gone down to the drain,” he said.
Lawyers John Chigiti and Boniface Muumbi are of the opinion that major developments in the Judiciary are likely to be affected.
Mr Chigiti said that Dr Mutunga had done well than his predecessors. Mr Muumbi, on the other hand said the CJ had tried but not to everyone’s expectation. He believes a change to the two top seats would breath fresh hope in the Supreme Court court.
“We expected radical change but he gave us hope although it gradually disappeared. We have made steps but not what we expected. Awareness about the right to access justice and access to court is far from what we expected,” Muumbi said.