, NAIROBI, Kenya, Oct 26 – Deputy Chief Justice Kalpana Rawal has accused the Judicial Service Commission (JSC) of perjury.
Rawal, through her lawyer George Oraro, on Monday told a five-judge bench of the High Court that the JSC, through its Secretary Atieno Amadi who is also Chief Registrar of the Judiciary, lied under oath.
In a replying affidavit to Rawal’s challenge to her retirement at 70, Amadi told the court that when Rawal was interviewed for the post of Deputy Chief Justice in 2013, she said she was willing to retire at 70.
READ: JSC opposes Rawal bid to delay her replacement
A claim Rawal had told the JSC to prove before producing a copy of her own transcript of the interview on Monday.
Oraro told the court that nowhere in the transcript had Rawal stated that she was indeed willing to retire at 70.
Even if she had, he continued to argue, it wouldn’t have been binding given the retirement age of judges is set in law and not a prerogative of the JSC.
The crux of Rawal’s challenge to her retirement is Section 31(1) of the sixth schedule of the Constitution which states:
“A person who immediately before the effective date, held or was acting in an office established by the former Constitution shall on the effective date continue to hold or act in that office under this Constitution for the unexpired period, if any, of the term of the person.”
Therefore, Rawal argues, the retirement age of 70 as set out in Article 167(1) of the Constitution, only applies to those appointed to the bench after the promulgation of the Constitution in August of 2010.
Given she was appointed as a judge in 2000 under the old Constitution, Rawal argues that the terms of her appointment — that she should retire at 74 — should continue to apply.
She’s also refuted the JSC argument that since the office of DCJ is a creature of the new Constitution, Rawal by default agreed to retire at 70 when she applied for the post.
Retirement age, she said, applied to Judges and not posts. “This is demonstrated by Section 24(1) of the Sixth Schedule which during the Constitutional transitional period gave the Chief Justice the option to retire or continue serving as a Court of Appeal judge,” Oraro submitted.
Hearing of the case continues on Tuesday.
The five-judge bench hearing the case, Richard Mwongo, Weldon Korir, Hedwig Ongudi, Christine Meoli and Charles Kariuki, on Monday also resolved to hear two other petitions filed by three other Judges also challenging the retirement age of 70, sequentially; directing that they would thereafter set a single date to deliver their findings on the petitions.