The tussle over retirement age of judges had by last night degenerated into a battle of wits between Chief Justice Willy Mutunga and his deputy Lady Justice Kalpana Rawal.
By several indications, Dr Mutunga, who has set his retirement date as June 16, is headed for a stormy exit after he plunged into the intrigues surrounding his succession yesterday and drew the wrath of Rawal, who is fighting to remain at the Supreme Court when her boss exits.
Mutunga waded into the fray when he fast-tracked by 22 days an appeal by Rawal, who last week lost her case to move the retirement age of judges from 70 to 74 years.
Mutunga overruled fellow Supreme Court Judge Njoki Ndung’u who on Friday suspended the ruling against Rawal and set a hearing date that would fall after the retirement of Mutunga, throwing the Supreme Court into confusion since then there might not be enough judges to populate the bench.
Ndung’u had listed Rawal’s appeal for hearing on June 24, long after the CJ would have left office. Mutunga is set to retire from the Judiciary on June 16.
However, by last evening, Rawal, through lawyer Kioko Kilukumi, raised a preliminary objection to Mutunga’s ruling on the basis that the CJ cannot constitutionally overturn a ruling by a fellow Supreme Court judge (Ndung’u).
The clash between the two most powerful judges on the land escalated when Dr Mutunga invoked his power as the titular head of the Judiciary to bring forward the challenge against the ruling of a seven-member Court of Appeal decision made last Friday that virtually sent Justice Rawal and suspended Supreme Court Judge Philip Tunoi packing.
The Court of Appeal on Friday ruled that Rawal and Tunoi proceed on retirement and that all judges must retire at 70.
“We hereby dismiss the two appeals filed by Judges Rawal and Tunoi. The retirement age of all judges serving under the new Constitution is 70,” the judges ruled.
Mutunga’s new ruling means that he would still be in office when Rawal’s appeal is heard and the Supreme Court could afford to constitute a five-judge bench comprising the CJ, Ndung’u, Smokin Wanjala, Mohamed Warsame and Jackton Ojwang’.
Succession war
However, the CJ’s intervention sparked off a flurry of legal activity, bringing out a picture of a succession war pitting Mutunga—backed by a clique of some NGO activists and lawyers—against Rawal, supported largely by conservatives identified with the older insiders at the Judiciary.
“My directions are therefore as follows: The registrar of the Supreme Court serves the parties to appear for the hearing of this application inter-partes before a five-judge bench of the supreme court on Thursday, June 02, 2016 at 10am,” said Mutunga in a statement.
Justice Rawal, in her preliminary objection, faulted the directive issued by her boss terming it illegal and going beyond his mandate.
She argued that Mutunga had no administrative powers granting him authority to form the five-judge bench to fast-track the hearing of her appeal.
In a letter to the President of the Supreme Court—Mutunga—Rawal said no administrative power can be cited to override a judicial decision (made by Justice Ndung’u).
“The Chief Justice has no legal power and authority to single-handedly vary an order issued by any judge of the Supreme Court under Section 24(1) of the Supreme Court Act, 2011,” she said.
Rawal argued that the interference by the Chief Justice is calculated and designed to undermine and completely erode her constitutional right to a fair hearing in violation of article 50 of the constitution.
“The CJ has acted contrary to the Constitution in interference of the judges of the Supreme Court. He is not at liberty to interfere with the decisional independence of any judge of the court,” the letter read in part.
In another twist, former Law Society of Kenya (LSK) secretary, Apollo Mboya, earlier yesterday sent a petition to the Judicial Service Commission (JSC) seeking to have Justice Ndung’u punished for issuing conservatory orders blocking the implementation of a ruling made by appellate judges in Rawal’s retirement age case. He claimed the unilateral stand taken by Ndung’u amounted to gross misconduct and misbehavior.
NGOs manoeuvres
Mboya was seen outside the Supreme Court in consultation with several lobbyists, including International Centre for Research and Governance Executive Director Ndung’u Wainaina.
And lawyer Issa Mansour had lodged an urgent application in the Supreme Court seeking a reversal of Justice Ndung’u’s sanctions.
Meanwhile, an individual has petitioned for the removal of the CJ for breaching the Constitution, the Judicial Service Code of Conduct and Ethics and lack of integrity and good judgement.
In his argument, Isaac Madubwi said the orders of a judge can only be changed by a five-judge bench in accordance with the Supreme Court Act 24 and not a single judge as Mutunga did yesterday.
The actions came as the People Daily learnt that there have been hectic behind-the-scenes manoeuvres by NGOs and human rights lobbies to steer the “Mutunga Succession.”
Women rights groups are reportedly also actively involved in spearheading the agenda to have a first female Chief Justice rise to the helm.
The imminent departure of Mutunga on June 16, when he attains 70 years, has rekindled the long-running battles between two opposing camps that are bent on choosing his successor. One of the camps insists on having an outsider to carry on Mutunga’s legacy of transforming the Judiciary while the rival group maintains on resurrecting the traditional insiders.
Already, all interested parties are said to have lined up names of possible successors they want to lobby for when the replacement process starts.
Judiciary insiders said more intrigues are looming as the constitution of the five-member Supreme Court Bench to hear Rawal’s appeal could cause ripples in legal circles because Justices Njoki, Ibrahim and Ojwang are at loggerheads with the JSC after they were “admonished” for alleged misconduct and their suitability to serve is already being questioned before the High Court.
Justice Wanjala is the court’s representative to the JSC.
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