Mutunga leaves a shell of a Supreme Court, headless Judiciary

Chief Justice Willy Mutunga

By the end of the day today, the country will not only have a shell of a Supreme Court but also a headless Judiciary.

That the third arm of government can have a departure of three senior judges in the country, is itself unprecedented.

Though the law is clear on what should happen even if all the judges of the Supreme Court were absent, the scenario is not one that would have been predicted.

Chief Justice Willy Mutunga retires today, one year ahead of his time, while his deputy Kalpana Rawal and the third senior most judge Philip Tunoi have been technically removed from office following a refusal by the Supreme Court to hear their retirement age cases.

A decision by the Supreme Court to hear the cases, would have given Justice Rawal a lifeline, to continue acting as CJ, awaiting the appointment of a new Chief Justice.

Under section five of the Judicial Service Commission Act, the Deputy Chief Justice is required to act as CJ for a period not exceeding six months pending the appointment of a new CJ.

Dr Mutunga's retirement at 69, would have brought the number of the Supreme Court judges to six. However, the decision by a majority of the sitting judges not to adjudicate the Rawal and Tunoi case technically upholds the judgement of the Court of Appeal to the effect that the two should retire at 70 years and not 74.

The court will be left with four judges, the senior most of them being judge Mohammed Ibrahim. Under Section five of the Supreme Court Act, the judges take precedence after the CJ and the DCJ, according to the dates on which they took office as judges of the Supreme Court.

And where the judges took oath on the same date as in the current situation, precedence shall be in accordance with their professional seniority. In that case, justice Tunoi was third in the pecking order. And with his exit, justice Ibrahim becomes the presiding judge, having joined the Judiciary before the other three – Jackton Ojwang, Smokin Wanjala and Njoki Ndung'u.

Under the same law, a single judge of the Supreme Court can only give interlocutory orders within a legal dispute but the court must have at least five judges to hear and determine a case on merits to its full conclusion.

The Supreme Court technically removed Rawal and Tunoi from the Judiciary but left the retirement question alive, to be determined by a differently constituted bench in future.

But how close or how far that future may be, is the big question.

By recusing themselves on the grounds of conflict of interest, Ibrahim and Wanjala effectively disqualified themselves from ever sitting in any other bench to determine the retirement age question, whether revived by Rawal, Tunoi or brought up by any other judges appointed before the Constitution came to force.

This means that as long as the two are judges of the Supreme Court, such a determination shall only be made by a bench of five judges.

Ibrahim and Wanjala, who are in their 50s, are likely to be in the Supreme Court for over 10 years if they are to retire at 70. The most immediate task for the Judicial Service Commision will be to replace the CJ within the next six months, the deputy and Tunoi. In a short while therefore, the Supreme Court will have three new faces and the four serving ones.

Questions will still be abound as to whether judges Ndung'u and Ojwang can still sit and determine the pending age retirement issue if brought to the court by other judges.

This may be one of the many reasons why Judge Ibrahim suggested that the Supreme Court should have at least nine judges to ensure it never gets a quorum hitch should some judges recuse themselves.

The constitution requires the CJ to assign cases in the lower courts to judges. And in his absence, the DCJ may constitute such a bench. However without the CJ and his deputy many cases in the lower courts may come to a halt awaiting the appointments.