Petition shines spotlight on discord in Supreme Court

The judgment of the Supreme Court in Petition 23 of 2014 delivered on Monday has elicited serious debate in legal circles. The case arose from the 2013 Senatorial race in Bomet County, with the loser in those elections, Nick Salat, challenging the outcome.

The majority decision has raised furore for addressing itself to another live and extremely contentious matter, the issue of the retirement age of judges and the powers of the JSC, when in the opinion of critics, that was not one of the issues for determination.

The CJ in his dissenting opinion roundly chastised his colleagues on the bench terming their decision a “Judicial utado?” and “a worrying form of judicial impunity.” He quoted the treatise of Prof Margaret L. Moses where she argues “The court no longer acts as a court when it changes the nature of the case the parties brought in order to create an opportunity to change the law, when it reaches out to decide issues not properly before it....”

Whether the judges were right or wrong to use the forum of Petition 23 of 2014 to express themselves on issues not before them is a matter to be determined in the petitions filed by Apollo Mboya for removal of five of the seven judges of the Supreme Court. In my opinion, however, their restating that judges are not subject to control or direction of any person, including the JSC, cannot be faulted.

The judgment seems to have breathed new vigour into Mboya’s petitions and curiously even the Law Society chairman, Eric Mutua, weighed in with strange talk of abolition of the Supreme Court altogether which, to me, is an overreaction. We should be advocating for the strengthening of our institutions, not rushing to abolish them because of issues with a few individuals.

The membership of the LSK for instance, has had issues with Mutua’s leadership style for over a year now, but has not called for the abolition of the society.

A historical appreciation of why Kenyans wanted a new apex court in our judicial system is critical in contextualising the retrogressive nature of Mr Mutua’s suggestion. The final report of the Constitution of Kenya Review Commission lays down three key concerns with the then structure of the courts as identified by Kenyans.

First was the “generally restrictive approach to constitutional interpretation which the then High Court had adopted, especially in the area of human rights litigation” which “hampered the growth of proper jurisprudence, case law or precedent in this area”.

Second, the lack of a right of appeal from a High Court decision on constitutional matters which was seen as “a denial of the right of appeal of the aggrieved party” and thirdly criticism of some High Court decisions for “being made against the public interest and being influenced by factors outside the law, eg, declaring the Kenya Anti-Corruption Authority unconstitutional and terminating criminal cases against persons charged with corruption”

It is following this experience that it was deemed desirable to constitute a Supreme Court as the final arbiter on interpretation of the Constitution. Further roles in adjudicating disputes arising from presidential elections and issuing advisory opinions on key matters were added.

For anyone to suggest therefore, that the Supreme Court has “no work” or that its functions could very well be undertaken by the Court of Appeal is to take Kenyans for fools. We had a Court of Appeal back then and still Kenyans, in a resounding indictment of that court, wanted another one superior to it.

Whatever personal differences Mutua and Mboya have with individual members of the Supreme Court should therefore be resolved through the usual channels and preferably without dragging in the good name of the LSK, because once again, they speak only for themselves.