NAIROBI, Kenya, Sept 16 – The Judicial Service Commission (JSC) has opposed Deputy Chief Justice Kalpana Rawal’s bid to delay the process of securing her successor arguing that it could lead to a constitutional crisis.
The JSC in an affidavit sworn by its Secretary Atieno Amadi, argues that a constitutional crisis could be created should the court agree to the retirement age of 70, and there be no one to take over from Rawal as DCJ.
“The petitioner herein is on terminal leave and is not currently sitting to decide in any cases that are before the Supreme Court. This is in addition to Justice Tunoi who is currently not sitting meaning that there are currently only five judges of the Supreme Court. In the event that one of the five gets sick, the Supreme Court will not be properly constituted.”
A situation, Amadi continued to argue, made more tenuous by Chief Justice Willy Mutunga’s own pending retirement.
“The Chief Justice will be going on terminal leave shortly after. 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.
“Further, the administrative functions of the Chief Justice which can be conducted by the Deputy Chief Justice will not be able to be conducted as both of them would be on terminal leave,” Amadi submitted.
She’s also accused Rawal of challenging the JSC’s notice of her retirement in January in bad faith, arguing that she was made aware on taking up the post of DCJ, that she would be required to step down on attaining 70 years of age.
“I verily believe that when the petitioner herein was interviewed for the position that she now holds as Deputy Chief Justice, the question of her retirement age was put to her to which she answered that she knew that she would retire at an age of 70 years,” Amadi contended.
Rawal has challenged her retirement at 70 arguing that she was employed, prior to the promulgation of the Constitution, under the understanding that she would retire at 74.
The JSC has however countered that the office of the DCJ is a creation of the current Constitution which clearly sets the retirement age for judges at 70.
But Rawal through her lawyer George Oraro countered that there was a distinction between the judicial office and the judicial officer.
Justice Isaac Lenaola was to rule on Thursday whether Rawal’s application for stay should be argued before more than one judge.