Taking oath didn’t take away my right to retire at 74, says Deputy Chief Justice Kalpana Rawal

Supreme court judge justice Kalpana Rawal. [PHOTO/FIDELIS KABUNYI/STANDARD]

Deputy Chief Justice Kalpana Rawal (pictured) has disputed notion that her right to retire at 74 years was annulled when she took oath of office under the new Constitution.

Lady Justice Rawal, in a blow-by-blow response to the Judicial Service Commission (JSC), argues that taking of oath was a requirement for all government officers, but could not vacate the rights they previously enjoyed before the promotion.

“As per the advice from my learned counsel I verily believe that Article 74 of the Constitution requires that every state officer, including all judges to take an oath of office before assuming, acting or performing any functions as a state officer. Taking an oath under the Constitution neither takes away my tenure as a judge nor does it amend the sixth schedule to the Constitution,” she argues.

Rawal, also the Deputy President of the Supreme Court, sued the JSC, accusing it of plotting to remove her even before the question of retirement of judges is addressed.

There is uncertainty over whether judges should retire at 70 or 74. Should the lower age limit be upheld, it would mean three Supreme Court judges, including the CJ, would retire before the next General Election.

In the case, Rawal told the judges that the move by the commission was unwarranted and hasty as she was still in office. The commission served her with a notice on September 1st and advertised for the position on September 6. The DCJ also argued that the Constitution would not be read with the exempt of the schedule, which was to ensure smooth transition between the old law and the 2013 Constitution.

She said her current case against the commission would settle the fate of 40 judges facing similar clamour for retirement at 70 years.

“From the outset it is important to state that I have not instituted these proceedings for my personal gain or benefit but in order to uphold, protect and defend the Constitution of Kenya 2010, on an issue at the heart of the independence of the Judiciary namely, the security and tenure,” she argued.

Adding that: “A determination of this constitutional question on the retirement age of judges transiting from the old constitutional order will bring certainty and settle the law which affects at least 40 judges who transited from the old Constitution.”

The commission had told a five judge bench of Justices Richard Mwongo (presiding judge), Charles Kariuki, Weldon Korir, Hedwig Ong’undi and Christine Meoli that Rawal ought to have leftoffice after attaining 70 years, as she came into office under the new Constitution.

The judge, through lawyers George Oraro and Kioko Kilukumi further said the question on the retirement age had also arisen during her interview by the Parliamentary Committee on Justice and Legal affairs and she held that the schedule to the constitution had allowed her to retire at 74 years.

It was her argument that her promotion in 2013 could not wish away her right to security of tenure that had been provided for by the old law.

“By virtue of section 31(1) of the sixth schedule, my tenure which was provided at the time of my appointment as a judge in 2000 under the repealed Constitution as 74 years, was saved by the Constitution, irrespective of the court hierarchy or office that I serve as a judge,” she argued.