Supreme Court crisis deepens as Rawal challenges CJ ruling

Deputy Chief Justice Kalpana Rawal on Monday deepened the crisis in the country’s highest court with an afternoon challenge to Chief Justice Willy Mutunga’s earlier decision to have her case heard on Thursday and not June 24 as Justice Njoki Ndung’u had earlier directed.

Dr Mutunga, who is the President of the Supreme Court, had said in his morning pronouncement that he had decided to bring forward the hearing of the case because of the huge public interest the matter had generated in the past four days.

“I hereby invoke my administrative powers as the Chief Justice and the President of the Supreme Court to fast track the hearing of the application,” he said.

But Mrs Rawal, through her lawyer Kioko Kilukumi, argued in a notice of preliminary objection that Dr Mutunga does not have any administrative powers he can cite to override a judicial decision.

“The Chief Justice has no legal power or authority to single handedly vary an order issued by a judge of the Supreme Court under Section 24(i) of the Supreme Court Act,” Mrs Rawal said.

The deputy chief justice argued that Dr Mutunga was not at liberty to interfere with the decisional independence of any judge of the Supreme Court and cannot vary any of their orders as that would amount to denying her the right to a fair trial.

It remains to be seen whether parties to the matter will appear before a two judge Bench of Justice Smokin Wanjala and Njoki Ndung’u that Dr Mutunga had constituted to convene this morning for purposes of issuing further directions on the matter.

Mrs Rawal opposed the move, arguing that “the two judge Bench is improperly empaneled in contravention of Section 23(ii) of the Supreme Court Act 2011, which sets out the purpose and function of a two judge Bench.”

Legally, the court must dispense with the preliminary objection before it gets down to dealing with any other matter pertaining to the case.

Mrs Rawal on Friday took her battle against the Judicial Service Commission’s (JSC) decision to retire her at 70 years to the highest court of the land, raising the heat over the ongoing power-play to its highest level.

Legal experts had earlier argued that the CJ’s decision to bring forward hearing of the matter could save the Supreme Court from a deepening crisis, but it did not take long before the decision itself was opposed.

READ: Supreme Court grants Rawal temporary reprieve in retirement case

At the centre of the crisis is whether judges hired before the promulgation of the 2010 Constitution must retire at 70 as provided for in the supreme law or leave office at 74 as was provided for under the former constitution.

Mrs Rawal’s swift move to challenge Dr Mutunga’s directions was similar to her rapid action on Friday to file a petition with the Supreme Court soon after the Court of Appeal issued a verdict upholding an earlier High Court decision that all judges must go home at 70.

Justice Ndung’u certified the application as urgent and issued temporary orders suspending the Appellate Court verdict and allowing Justice Rawal to continue discharging her judicial and administrative ruling.

The matter is complicated by the fact that if the hearing date stands at June 24, Dr Mutunga would have retired eight days earlier, leaving only four judges, Justices Jackton Ojwang, Mohamed Ibrahim, Njoki Ndung’u and Smokin Wanjala, available to hear the appeal as both Justice Rawal and Justice Philip Tunoi are parties to the matter and cannot hear it.

Besides, Justice Rawal as Dr Mutunga’s deputy would have taken over leadership of the Judiciary in an acting capacity from June 16 putting her in the Judiciary’s most powerful position.

Dr Mutunga’s decision to speed up the matter was also seen to be alive to pertinent questions on the eligibility of the Supreme Court judges to hear Mrs Rawal’s petition.

Three of the Supreme Court judges, Justices Ojwang, Ibrahim and Ndung’u had last year ruled in a separate petition that judges aged 70 and who were in service under the former constitution could not be forced to retire. 

Dr Mutunga and Justice Wanjala sit in the Judicial Service Commission, which has officially asked Justices Rawal and Tunoi to vacate office having attained the age of 70.

Hearing of the case on Thursday may, however, be affected by two petitions filed in the Constitutional Court challenging the Justice Ndung’u decision.

Former Law Society of Kenya chief executive Apollo Mboya has filed an application seeking to have Justice Ndung’u removed as a Supreme Court judge following her controversial Friday ruling.

The Judicial Service Commission is also seeking to have the controversial decision allowing Justices Rawal and Tunoi to be in office overturned and this is likely to take precedence even as the hearing kicks off.

Fresh directions on the matter also bring into focus Dr Mutunga’s resolve to have the matter resolved speedily to pave way for his retirement.

Meanwhile, a theologian Monday filed a petition in the Constitutional and Human Rights Division of the High Court seeking to challenge Dr Mutunga’s decision to retire early.

Bryson Mangla, a resident of Kajiado County, says in court documents that the President of the Supreme Court needs to deliver on his contract and complete his term in order to avoid throwing the country into a crisis.

“JSC should reason with the Chief Justice through alternative resolution method to quell the crisis he has personally helped create at the Supreme Court. He should serve his full term, especially now that the fate of two other judges can only be disposed of if he remains in office to constitute the minimum Bench of five justices to hear and determine the pending case at the Supreme Court,” he said.