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ELECTION 2022

Firm leadership may have averted Judiciary impasse

KAMOTHO WAIGANJO
By Kamotho Waiganjo | Jun 5th 2016 | 3 min read

The matter relating to the retirement by the two Supreme Court judges remains sub-judice and cannot be fully discussed without running foul of the law. On the substantive issue however, my personal view is as follows. The Supreme Court is a creation of the Constitution. The Constitution sets the retirement age at 70. Justices Kalpana Rawal and Philip Tunoi should therefore have retired at age 70. Judges in lower courts may however retire at age 74; their terms were saved by Section 31 of the 6th schedule. But better minds are arguing these issues and I will leave it at that.

I wish to start today’s piece with a few words about Justice Njoki Ndungu. Many in the media and in legal circles have simplistically rushed to condemn her as if the crisis in the court was created by her orders last week. While I admit that I do not know the facts on who filed what when, I have watched Justice Njoki long enough to know that while one may not always agree with her, she is neither thoughtless, rash or reckless. From her days as a human rights and gender crusader in civil society to her debut in NARC politics and her short stint in Parliament where she cajoled, lobbied and negotiated the Sexual Offences law, Justice Njoki has always struck me as person willing to fight for what she believes in, public opinion be damned. She is no player to any gallery.

In the Committee of Experts, Justice Njoki is credited with pushing for many of the pro-women provisions that many Kenyans men now detest in the Constitution. Even in the Supreme Court, despite being the youngest judge, and sitting with long serving law professors and judges, she has defined an independent spirit, delivering the largest number of dissenting judgments in the court’s short history. Among her dissents include the Judges Vetting Board case where she argued for a more liberal and purposive interpretation of the Constitution, the Kidero judgment where she gave a curious “concurring dissent”, and in the Senate case where she cautioned the court from entertaining “political questions”.

One must see her stay orders in favour of Justices Rawal and Tunoi in that light. She must have known she would be lambasted. Unlike many feebler souls did what she believed was appropriate. As we disparage her, let us note that the Court of Appeal itself gave a stay of the High Court decision so there is nothing fundamentally flawed in the Supreme Court staying the decision of the Court of Appeal.

As we take our usual positions on this issue we must all admit that this matter fundamentally reflects lack of leadership. How could the JSC, knowing full well that had the two Judges gone home last week and the CJ followed three weeks later, the Supreme Court would have been rendered non-functional, watch and wonder, like the rest of us? Did the JSC consider the consequences of having a non-functioning Supreme Court, especially knowing the slow pace of recruitment that such processes portend, complete with injunctions and other delaying mechanisms? How could the CJ’s early retirement be contemplated without a simultaneous effective management of his succession?

In my view, the JSC should never have allowed these matters to be ventilated in the courts without seeking other options that did not injure the standing of the Judiciary. The image of Supreme Court judges litigating employment issues in lower courts, filing objections and seeking injunctions, is distasteful. As early as two years ago, the JSC should have implemented the ADR mechanisms being proposed now, obviating the need for the ongoing litigation. The current imbroglio has the capacity to injure the Judiciary irreparably.

Of the three arms of government, the Judiciary must reflect the best in us for that is where we take our dysfunctions for resolution. The shortfalls we have learnt to accept of the Executive and the Legislature are unacceptable in the Judiciary.

This matter needs leadership, not followership. In this respect one must laud Isaac Okero’s team at the LSK. How I pray that their proposed mediation efforts succeed, failing which we are headed to a season of madness, from which the Judiciary may not recover.

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