The Law Society of Kenya (LSK) yesterday raised concerns that the issuance of ex-parte conservatory orders to Deputy Chief Justice Kalpana Rawal by Supreme Court judge Njoki Ndung’u present a constitutional crisis to the Judiciary.
LSK chair Isaac Okero said the continued stay in office by the DCJ presents a big challenge as to whether she can act as the Chief Justice for six months upon the retirement of CJ Willy Mutunga next month.
“By operation of section 5(4) of the Judicial Service Act, the law places the DCJ to temporarily take over at the helm and be in a position to constitute the bench of five that will hear her case,” he said.
Speaking during a press conference at the council offices yesterday, Okero warned that Rawal’s stay in office beyond the constitutional age limit of 70 years is likely to attract legal challenge and affect the operations of the Judiciary.
“A further challenge will be achieving a quorum of five judges not conflicted in one way or another over the dispute of the retirement age of judges for the hearing of Justice Rawal’s appeal or indeed any application to set aside the conservatory orders,” he added.
He challenged the actors in the dispute to consider the agitation of their respective positions and whether their respective positions is worth placing the Judiciary and the country in the precarious position. Okero, however, indicated that LSK has already reached out to both parties to lead a process of mediation that avoids risking the Judiciary and the country a constitutional crisis.
He noted this as the only way of resolving the matter in a way that does not destroy the institution of the Supreme Court of Kenya and undermine the credibility of the Judiciary. “As the most significant stakeholder in the administration of justice, the LSK shall apply to join the pending proceedings as amicus curiae,” added the LSK boss.
Rule of law
The proper functioning of the courts is critical to the administration of justice of the rule of law, he noted. Justice Njoki Ndung’u last Friday issued orders stopping the replacement of Rawal until an appeal she filed before the court is heard and determined.
“Pending inter-parties hearing and determination of this application, a conservatory order is hereby issued directing that the decision of the High Court affirmed by the Court of Appeal dated May 27, 2016 to the effect that the retirement age of judges is 70 years be suspended,” she said.
She effectively issued a conservatory order directing the Judicial Service Commission and Judiciary Registrar Anne Amadi from issuing any retirement notice to Rawal.
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