Wrangles may overshadow CJ Mutunga’s reforms in Kenya’s Judiciary

Chief Justice Willy Mutunga will retire in June this year but the troubles that have rocked his exit might overshadow his achievements.

Last year the Public Accounts Committee (PAC) accused him of not asserting himself from whence he took office in 2011. PAC painted a picture of a "headless" Judiciary in which Dr Mutunga was seemingly unable to control his officials.

The split in the Judiciary would later feature in a ruling meant to settle the Bomet senatorial election petition, which turned ugly after the Judicial Service Commission and judges used it as a boxing ring to square it out over the judges' retirement age.

The confusion in the Judiciary over the retirement age of judges was evident in the Supreme Court on October 19, during the ruling on an appeal challenging the election of Bomet Senator Wilfred Lesan.

Nick Salat had, through his lawyer Titus Koceyo, questioned the presence of Justice Philip Tunoi as part of the Bench that heard his appeal yet he was over 70 years.

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Though Mr Lesan's election was unanimously upheld, the Supreme Court judges differed over the retirement age of judges.

Mutunga was a lone ranger in this, although, he had no option but issue a dissenting opinion as he is the commission's chairman.

His deputy Kalpana Rawal led a force of four to show their discontent with how their employer was treating them in the presence of their team leader.

By a majority decision, Justices Jackton Ojwang, Kalpana Rawal, Tunoi and Njoki Ndungu ruled judges aged 70 years cannot be forced to retire, escalating a conflict with JSC which wants them off the Bench. The judges found that JSC "lacks the competence to determine when a judge may perform their judicial duty".

But the Chief Justice, who is also the President of the Supreme Court, noted that there was no case surrounding the age question before that court.

The dispute on whether judges should retire at 70 or 74 years has sparked controversy within the Judiciary because it has implications on the composition of the Supreme Court, which is the final arbiter and interpreter of the Constitution.

The judges in the highest court in the land interact with lawyers, but the learned friends want the law changed to scrap the Supreme Court.

The Law Society of Kenya in a statement said the court was unnecessary as its role could be played by the Court of Appeal on a temporally basis.

"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 adhoc Supreme Court may perform the role of the Supreme Court," said LSK President Eric Mutua.

Internal wrangles have been simmering and the only Supreme Court judge who has remained out of it is Justice Smokin Wanjala. He, however, sits in the Judicial Service Commission as a member representing Supreme Court judges.