Settle the matter of judges' retiring age

NAIROBI: The question of retirement age of judicial officers in Kenya is developing to be a contentious one.

The retirement age of public servants is apparently determined more by the government than the law.

In 2009, the age was pushed from 55 to 60 years by the coalition government.

But when it comes to the retirement age of judicial officers, even in the days of the new Constitution, there is total confusion, interestingly exasperated not by law, but actions of high ranking officers in the Judicial Service Commission.

Any meaningful discussion on the retirement age of Kenyan judicial officers must start with the acknowledgement that there are two-tier judicial officers - those working in the Magistrates Courts – under the Magistrates Court Act, often called subordinate courts or lower courts and that cadre which can collectively be called judges, comprising High Court, Industrial Court, Land and Environment Court, Court of Appeal and Supreme Court judges, all appointees under the Constitution of Kenya. In law, magistrates do not have a retirement age.

In theory there is no legal provision to bar say a 74-year-old lawyer from being a magistrate until he dies working on the bench. Of course, the Judicial Service Commission has its own in-house policy of limiting the retirement age of magistrates to 60 in line with other civil servants.

And now we come to the age of retirement of judges and admittedly have to open a Pandora's Box.

Article 167(1) of the Constitution provides the age limitation of all judges to be 70 years.

The provision is so clear that it should not invite any form of debate, but lawyers in their wisdom have their own way of entering into a cauldron of conflict.

Section 9 of the Judicature Act states 'For the purposes of section 62 (1) of the Constitution, the age at which a person holding the office of judge shall vacate his office shall be seventy-four years.'

This section, though existing as law, is obsolete and being inferior to the Constitution, should be disregarded.

In present-day Kenya, there are three dimensions which have developed when considering the age of retirement of judges.

The first one relates to those judges who were appointed under the old constitution which provided for age of judges to be 74 years.

Having been appointed and bearing in mind the doctrine of legitimate expectations, these judges should not be expected to retire before the age of 74 years.

But, and this is interesting, all judges on the enactment of the new Constitution were re-sworn to uphold the new Constitution.

By so doing did they not specifically change their contractual terms and agree to retire at 70 years?

The second class is those existing judges who have since 2010 been promoted to higher offices. That is, Court of Appeal or Supreme Court though initially appointed under the old Constitution. On promotion, did these judges not concede to respect the Constitution?

The third class is simple. All new judges of whatever designation must retire at the age of 70 years.

The Judicial Service Commission is vested with the powers of employing judges. It is also a body which in the recent past taken some inexplicable decisions, thereby confusing the legal standings of many a judicial officer.

On May 24, 2011 it is in the public domain the JSC through a circular informed judges that the retiring age was 74 years, contrary to the Constitution.

Through another circular dated March 27, 2014, it informed judges that a JSC meeting put the retiring age of all judges at 70 years.

As a result of these two circulars, a Supreme Court judge and a High Court Judge in May 2014 went to court. The two were seeking a declaration that the retiring age for all judges be 74 years instead of 70 years.

The Court adjudicating over the matter gave an interim order for the two to continue to hear matters until the case of the judges is finalised.

In other countries the retiring age of judges differs from that in Kenya. In Canada the age is 75 years while in Australia the age is 72 years. In India, the retiring age of Supreme Court judges is 65 years and for a High Court judge, it is 62 years.

However, upon retiring, a judge cannot practise before a Court of law or any other authority.

In the US, there is no mandatory retiring age for federal judges. Article III of the Constitution allows judges to retain their office as long as they maintain good behaviour.

Wesley Brown served on the bench until 2012 when he died at the age of 104! Judges are appointed for life (life tenure).

The eleventh Chief Justice of US once said he found it "Extraordinary how reluctant aged judges are to retire."

There are some interesting dimensions.

Can a litigant appearing before a judge over 70 years argue that the judge is sitting illegally?

Another interesting extension: if the Supreme Court judge over 70 years says that it is not illegal, where does the litigant appeal to?

And is it not patently wrong that judges with an interest in the matter will decide the question of retirement age of fellow judges?

Hopefully, the fate of the senior judges will be determined soon thereby putting to rest a burning issue.