Judicial Service Commission calls crisis meeting amid biting Supreme Court judges go-slow

Willy Mutunga

The Judicial Service Commission (JSC) has called an emergency meeting tomorrow at 11am to discuss the ongoing paralysis at the Supreme Court, The Standard on Sunday can authoritatively reveal.

This comes after Supreme Court judges made good their threat to go on a strike which kicked off on Monday. Two commissioners said JSC called the meeting after it became clear that a serious judicial crisis was unfolding.

“We have agreed to a meeting tomorrow at 11am as JSC because this is fast becoming a serious disaster with a high chance of exposing the country to a crisis we believe can be avoided,” said one of the commissioners.

For six days now, the judges have not been sitting on judicial matters including delivering rulings due this week.

Raising three issues

Instead, the judges have just been reporting to their offices and whiling away time on matters not necessarily related to their judicial responsibilities.

A senior member of JSC who did not wish to be named confirmed yesterday that the judges have not been sitting over the last one week.

Chief Justice Willy Mutunga, however, admitted that JSC has called a meeting next week to discuss the matter. This happened even as it emerged that the October cause list for Supreme Court had also been suspended causing anxiety among litigants in various matters before the court.

Last week, The Standard on Sunday exclusively reported that three judges of the Supreme Court had written to their employer, the JSC, raising three issues on which they sought immediate resolution failure to which they would go on strike.

Firstly, the judges claimed the commission had disregarded a legal and active court ruling on retirement of Justice Philip Tunoi which the judges argued would also apply to the retirement controversy surrounding Deputy Chief Justice Kalpana Rawal.

The court had restricted JSC from retiring Justice Tunoi until a case he had filed in regard to his retirement age is heard and determined.

Secondly, the judges accused JSC of disregarding provisions of the Constitution by purporting to exercise powers it does not have under the law to suspend Justice Tunoi and DCJ Rawal from sitting until their court cases are heard and determined. They argued that only the President has powers to suspend a judge in the process of constituting a tribunal.

Thirdly, the judges held that JSC was illegitimately interfering with their operations as judges, a matter they vowed they would not concede to. But the commission upon receiving the protest letter from the Supreme Court responded in a three-sentence statement signed by Chief Registrar of the Judiciary Ann Amadi.

The JSC response whose contents one of the commissioners agreed to share with us, said the commission would not comment on the matter because it was still in court.

Ms Amadi did not respond to our queries regarding the status of the various matters pending before the Supreme Court.

The CJ urged for “patience and maturity” even as the Supreme Court strike over the retirement age of judges grinded the operations of the court to a halt. By virtue of his twin roles at JSC as chair and Supreme Court as President, Dr Mutunga is caught between the controversy.

On Friday at a public event in Nanyuki, the CJ reiterated his resolve to retire in June next year ahead of his 70th birthday in 2017, an announcement which has fueled succession lobbying.

“We should avoid getting over heated and having a neurotic breakdown, and allow the institutional course chartered by the Constitution to flow. Dialogue and litigation are part of that course and both are presently engaged,” Mutunga told The Standard on Sunday yesterday.

He said JSC and himself as the leader of Judiciary have been addressing the issue of retirement “away from the public glare for two years now”.

Mutunga said in 2013 the commission sought an opinion from senior legal minds where the decision to relieve 70-plus judges of active involvement in cases was made.

“I have tried dialogue and negotiation. But there wasn’t convergence of opinion and those aggrieved, as a matter of right which no one can deny them, have decided that the court is the right place to resolve the dispute.”

“I cannot stop that by fiat; I cannot strangulate a court process just like that. I constituted the Bench of five judges and gave directions that the matters be heard on a priority basis, and they are proceeding,” he said.

Away from the court, Mutunga says he has referred the administrative aspects of the matter to the JSC, and which is now at loggerheads with his colleagues at the Supreme Court. “So let the courts and other constitutional institutions do their job. I have faith these issues will be settled – as they always are,” he said.

No legal mandate

In their letter to the JSC, the Supreme Court judges had said that the commission had neither the competence nor the legal mandate to regulate their operations.

They said this was a function of the President of the Court, Vice President of the Court and the judges.

Yesterday, two Supreme Court Judges who spoke to us said they would not cede ground until JSC reverses what the judges termed “unconstitutional decisions and actions”.

But Mutunga now says the courts and the JSC have the competence to resolve all the matters. He defended the conflicting views being expressed on the matter by the victims of the JSC decision, the judges of Supreme Court, the JSC and commentators.

“My view is that a divergence of opinion is not a bad thing. We must take the broader view that this Constitution and the institutions it created are being tested daily, and we must exhibit a patience and maturity to permit it to respond to the social, political and economic challenges that arise:

“If we appreciate the fact that constitutional controversies will always arise, sometimes rather sharply, conducting ourselves with calmness and restraint, and having an abiding faith in our institutions to resolve them, is the only way to grow our Constitution and institutions,” he said.

Mutunga explained that he could not discuss the matters extensively as they are under active consideration of the courts and the JSC. He revealed that JSC is taking up the administrative aspects of the conflict while the courts aspects which have raised constitutional controversy.