, NAIROBI, Kenya, Oct 21 – The Law Society of Kenya is calling for scrapping of the Supreme Court following reports of a fallout between a section of the judges and Chief Justice Willy Mutunga, who is also President of the court.
LSK President Eric Mutua said they will seek constitutional amendments to scrap the highest court in the land saying that “its role can be performed by judges selected from the Court of Appeal or by an ad-hoc Supreme Court.”
He added that scrapping the Supreme Court will benefit the country in cutting down unnecessary expenditure.
Mutua said the lawyers’ lobby will be renewing its petition placed before the Judicial Service Commission (JSC) for the removal from office of three judges of Supreme Court for ‘gross misconduct and misbehaviour’ as they have breached several Articles of the Constitution.
He says the three judges threatened to down their tools if the JSC failed to reverse a decision to retire judges who have attained the age of 70.
“The action by those judges is not only a subversion of the Constitution but a real threat to constitutional order. It is a gross misconduct and misbehaviour that warrants their removal from office. The authority assigned to State officers is a public trust that is to be exercised in a manner that demonstrates respect for the people. Such officers should act in a manner that brings honour and dignity to their office and the country,” read a statement from the LSK.
In a petition dated October 10, LSK Secretary Apollo Mboya requested the JSC to remove from office Supreme Court judges Njoki Ndung’u, Jackton Ojwang’ and Mohammed Ibrahim who recently stopped presiding over Supreme Court matters in solidarity with their colleagues who are required to retire after attaining 70 years.
On September 24, the three judges, acting on behalf of ‘members of the Supreme Court’ put the JSC on notice of an immediate strike if it continued to uphold its decision to suspend from active duty judges who have attained the age of 70.
The judges opposed to the rule argue that they were appointed before the new Constitution when the retirement age for judges was 74.
The JSC has rejected the three judges demands in two meetings held subsequent to the September 24 letter.
“The actions of three honourable judges have not only held litigants hostage but also led to delayed justice, contrary to constitutional guiding principles under Article 159 of the Constitution of Kenya,” LSK said in the petition.
Judges Philip Tunoi and David Onyancha were issued with the notice of retirement last year when they attained the mandatory retirement age for judges, according to the Constitution. Both judges moved to court and obtained conservatory orders restraining the commission from removing them.
The two judges argued that the decision was unconstitutional and illegal since the judges were subject to the transitional clauses of the new Constitution which allows them to be in office until they are 74. The matter is still pending in the courts.
JSC subsequently suspended Tunoi and Onyancha from active duty until the determination of their suit. They explained the suspension had become necessary because it had become ‘a matter of public concern’ for the two judges to continue to sit and render decisions, ‘a matter that has caused anxiety to the general public, litigants and JSC.’
Article 252 of the Constitution says a judge of a superior court may be removed from office on account of inability to perform functions, breach of code of conduct, bankruptcy, incompetence and gross misconduct.
If the JSC accepts Mboya’s petition, it will be forward it to President Uhuru Kenyatta who within 14 days will suspend the judges and form a tribunal to investigate them.
Deputy CJ Kalpana Rawal has also opposed her retirement and filed a case seeking to stay in office.