CJ to address Supreme Court impasse over retirement age

May 30, 2016 10:48 am
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The decision by the JSC to retire Rawal and Tunoi back in September last year caused a rift on the Supreme Court bench/FILE
The decision by the JSC to retire Rawal and Tunoi back in September last year caused a rift on the Supreme Court bench/FILE

, NAIROBI, Kenya, May 30 – The Chief Registrar of the Judiciary Anne Amadi on Monday told Capital FM News that Chief Justice Willy Mutunga, “as President of the Supreme Court,” would “give direction” on unfolding events following a crisis building up in the retirement case of his deputy Kalpana Rawal and Philip Tunoi.

Rawal and Tunoi on Friday obtained orders restraining Amadi as CRJ from retiring them pending hearing of their appeal on June 24.

Overview
  • Rawal and Tunoi on Friday obtained orders restraining Amadi as CRJ from retiring them pending hearing of their appeal on June 24.
  • Rawal and Tunoi obtained the orders after the Court of Appeal upheld the High Court finding that they should both have exited office on attaining the age of 70 as stipulated in the Constitution and not at 74 as they contend.
  • Mutunga who has announced that he will himself retire in June to allow sufficient time to recruit his successor ahead of the 2017 General Elections has by virtue of that decision and in his role as Chairman of the Judicial Service Commission, taken the stand that all judges - regardless of whether they were appointed prior to or after the promulgation of the Constitution - should retire at 70.

Rawal and Tunoi obtained the orders after the Court of Appeal upheld the High Court finding that they should both have exited office on attaining the age of 70 as stipulated in the Constitution and not at 74 as they contend.

Mutunga who has announced that he will himself retire in June to allow sufficient time to recruit his successor ahead of the 2017 General Elections has by virtue of that decision and in his role as Chairman of the Judicial Service Commission, taken the stand that all judges – regardless of whether they were appointed prior to or after the promulgation of the Constitution – should retire at 70.

READ: JSC commences process of replacing Rawal as DCJ

A number of parties – the Law Society of Kenya, the Ombudsman Otiende Amollo, and Amadi herself – have expressed concern that a failure to resolve the impasse expeditiously could lead to a crisis.

“The Chief Justice will be going on terminal leave shortly. In the event that the process of finding a successor to the petitioner is not conducted promptly or halted by the Honourable Court as the petitioner prays pending the hearing and determination of the petition, another greater constitutional crisis would arise hence paralysing the delivery of justice in the Supreme Court,” Amadi submitted to the High Court when Rawal challenged her retirement.

Article 163(2) of the Constitution stipulates that, “the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges,” and the concern is the threshold would not be met should Mutunga, Rawal and Tunoi exit office at the same time without replacements having been secured.

The decision by the JSC to retire Rawal and Tunoi back in September last year caused a rift on the Supreme Court bench as Justices Njoki Ndungu, Jackton Ojwang and Mohammed Ibrahim took a stand against Mutunga by declaring that the JSC, “lacks the competence to determine when a judge may perform their judicial duty.”

READ: CJ, Supreme Judges lock horns over judges retirement

It is for this reason, in part, that the LSK and Ombudsman have called for dialogue rather than continued litigation as the 2017 General Election rounds the corner.

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