Should judges sue in the same courts that they preside over? Yes. Judges are Kenyan citizens. They have rights under the Constitution and the law both as judges and as citizens. They have the right to protect their rights. They have the right to run to court if their rights are violated or threatened with violation. They have the right to run to court for an interpretation of a provision of the Constitution and the law affecting them. Just like every other person.
The US Supreme Court in Marbury vs Madison restated one of the most fundamental principles of any social and legal system. No one is above the law; and, every person has the right to protect their rights through the courts of law.
President Adams of the United States nominated William Marbury, Dennis Ramsay, Robert Hooe and William Harper as Judges. These nominations were approved by the Senate. The President signed their appointment letters.
The letters were then sealed by the Secretary of State. President Adams left the office of President before these Judges received their appointment letters.
It was the responsibility of the President under the law to nominate Judges and upon approval of the Senate appoint them by signing their letters of appointment.
The duty of the Secretary of State under the law was to affix the seal of the United States to the letters of their appointment after they had been signed by the President. The Secretary of State refused to deliver those letters of appointment. One of the Judges, William Madbury, sued the Secretary of State at the US Supreme Court.
The Secretary of State refused to deliver the appointment letters to the new judges because they had been a change in the office of the President. When he was sued before the Supreme Court the Secretary of State and his junior officers refused to give the Supreme Court any reasons for failing to deliver the letters of appointment to the Judges.
The questions posed before the Supreme Court to decide were two. Did the Secretary of State break the law and breach the rights of the appointed judges? Did the Court have the power to compel the Secretary of State to perform his duty against the will of the President?
The Court held that the Secretary of State had a duty to follow the law. He was an officer, not of an individual, but of the United States, bound in such office to obey the law. His duty was to perform a legal obligation and not to act by the instructions of the President. Failing to deliver the letters of appointment to the judges was not only unlawful, but also a breach of the rights of the appointed judges.
In the fullness of time the Courts will determine whether the retirement age of judges appointed under the old Constitution should be 70 or 74 years.
Until that happens, the judges who have sued in court should not be looked down up, bullied, victimised or stigmatised for choosing to exercise their right to protect what they believe is their right. Until a final decision is made they should receive all the privileges and perks they have earned in service for the Judiciary and are entitled to.
Ultimately, the question of the retirement age of judges appointed under the old Constitution will not be as black and white as many in the legal profession would like to believe.
Only recently did the High Court award the former commissioners of the Electoral Commission of Kenya damages for the loss of office they suffered on the passing of the new Constitution.