THE Judiciary seemed to sink into deeper crisis at the weekend, after Chief Justice Willy Mutunga recalled the controversial judges’ retirement age case file to issue new orders.
Sources in the Judiciary told the Star that Justice Mutunga held a crisis meeting over the weekend and decided to call for the file in the Justice Kalpana Rawal case with a view to giving fresh directions on how and when it should be heard.
Calling for the file was necessitated by orders issued by Supreme Court Judge Njoki Ndung’u on Friday, suspending a decision of the Court of Appeal requiring Deputy Chief Justice Rawal and Justice Philip Tunoi to retire at 70.
According to sources who sought anonymity, the CJ might constitute a Bench that will hear the matter and issue an earlier date than June 24, which was given by Justice Ndung’u.
This means the matter will probably be heard and determined before Mutunga officially hangs up his boots on June 16, because, after his retirement, the Supreme Court not will have no quorum to hear the matter.
“Unless an appeal is heard and decided in the next two weeks before Chief Justice Willy Mutunga leaves office, then it would not be possible for an appeal on this matter to be determined,” said city advocate Charles Kanjama.
If the decision by Judge Ndung’u suspending Rawal’s retirement stands, it will mean the DCJ will automatically step in as acting Chief Justice once Mutunga retires.
This is because the Judicial Service Act dictates that deputy chief justices step in as CJs for a period not exceeding six months pending the hiring of the next chief justice.
However, this morning, former Law Society of Kenya chief executive officer Apollo Mboya is expected to file a petition against Judge Ndung’u, seeking her removal from office for what he terms an unconstitutional decision.
Ndung’u has come under fire since her Friday decision, with critics saying her move is part of the vicious power play in the Mutunga succession.
“She decided to constitute herself into a one- Bench Supreme Court and listen to a matter where she is conflicted,” Mboya protested.
On October 20, 2015, Ndung’u and two colleagues – Jacktone Ojwang and Mohammed Ibrahim – hearing a petition challenging the election of Bomet Senator Wilfred Lesan, ruled that judges aged 70 years cannot be forced to retire.
The three were afterwards subjected to a probe by the JSC over the issue, after Mboya filed a petition accusing them of going on a go-slow and engaging in gross misconduct not befitting the office of judge.
Following this, the JSC made a decision to admonish the three, saying there was indeed a go-slow, but declined to recommend their removal on grounds that the complaint did not meet the threshold for such action.
Aggrieved by this, Judge Ndung’u wrote to the JSC, demanding an explanation from her employer, saying she was condemned unheard.
“Noting that the JSC is populated by some of the finest legal minds in this country, we find that the failure to accord our client even the most rudimentary hearing at all before such adverse findings is very surprising. This is especially so in the light of her many documented pleas to the JSC for audience on critical issues affecting her fundamental rights,” reads the letter sent by Ndungu’s lawyer, Gitau Singh.
Yesterday a number of individuals within the legal fraternity expressed concern about the Mutunga succession politics that has had judges issue conflicting orders and injured the Judiciary’s reputation.
International Centre for Policy and Conflict boss Ndung’u Wainaina termed the move by Justice Ndung’u “a coup”.
“She must be removed or resign from the Judiciary. What she did is unacceptable. It is judicial anarchy,” Wainaina told the Star.
"The Judiciary is in a deep transition crisis. The crisis is the fight to control the soul of the Judiciary. It reveals the seismic forces battling between a pro-people Judiciary enshrined in the Constitution and reactionary older forces determined to reverse judicial reforms that they are angered with.”
Judges and Magistrates’ Vetting Board chairman Sharad Rao acknowledged that the Judiciary was at a crossroads.
“Yes, there is a crisis because, quite apart from conflict of interest, there may not be a sufficient number of judges in time to hear that appeal,” Rao said.
Yesterday, Wainaina urged Mutunga to take charge and “firmly offer direction”.
“This is the test moment of his leadership astuteness. He has nothing to lose when he gives unequivocal direction. Articles 1 and 3 of the constitution are on his side. The people of Kenya spoke in the referendum: They support the 70 years retirement age for judges. This is not the time to be nice,” he said.
Extra information
Supreme Court judges and quorum issue over Rawal case
Both justices Rawal and Tunoi are ruled out of a Bench hearing the matter because they are the petitioners (they filed the case)
Justices Ndung’u, Ibrahim and Ojwang already pronounced themselves on the retirement of judges’ case, so there is a possibility they will be told there is conflict of interest
Justices Mutunga and Smokin Wanjala sit on the JSC, which is a party in the case and this too might raise an argument of possible conflict of interest.