Firm leadership may have averted Judiciary impasse

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.