He is sure he is leaving.
As of today, Willy Mutunga, is the former honourable Chief Justice of the Supreme Court of Kenya, following his voluntary retirement from the position. For a man from humble beginnings, he has accomplished an illustrative career, one from which the old can draw admiration and the young inspiration. In a country with so many unfathomable forces at play, he is the perfect illustration that anyone can come from nowhere and be something.
The tenure of office of the Chief Justice and other judges is determined by law. In Article 167 (1) of the Constitution of the Republic of Kenya, a judge shall or, rather, can retire from office on attaining the age of seventy years, but may elect to retire at any time after attaining the age of sixty-five years.
At his current age, of 69, as he was born in 1947, Mutunga has not only voluntarily retired from his position, but he has observed and respected the provisions of the law like the leader he is should be doing.
Article 167(3) of the Constitution of the Republic of Kenya states that if the Chief Justice’s term of office expires before he or she retires, they may continue in office as a judge of the Supreme Court or the Court of Appeal. However, as we have learnt, Mutunga C.J is interested in engagements outside the corridors of the courts of law.
Are we anticipating danger?
The first reaction to the news of the Chief Justice’s retiring was trying to figure out what implications it poses to everybody, including but not limited to questions as to whether we are in danger or, hopefully, otherwise.
- Thoughts would definitely run to any available options for his replacement. As for now, none has been appointed by the President, under Article 166 (1), or recommended by the Judicial Service Commission, or subjected to approval of the National Assembly. With all the “politics” pertaining to that Position, there is, or there will be a limbo, one that may not be easily resolved and within due time. The most notable effect is that, for a while, Kenya may, unfortunately, be left without a substantive Chief Justice.
- With the retiring and delayed appointment of a replacement for Mutunga C.J, the constitution of the Supreme Court will, as a matter of course, be wanting. Article 163 (1) of the Constitution of the Republic of Kenya states that the Supreme Court consists of, among others, the Chief Justice, who shall be the president of the Court.
Without a duly constituted Supreme Court, there will be no worthy Supreme Court. Some of its responsibilities, those pertaining to the Chief Justice and his office, such as deciding on the validity of a declaration of a state of emergency and an extension of the same under Article 58 (5) of the Constitution of the Republic of Kenya; determinations on and/or of questions as to validity of a presidential election under Article 140 will not be delivered upon as effectively as they ought to be.
- With effect, several offices will be directly affected by a dearth of a presence of a person in the position of the Chief Justice. For example, the Judicial Service Commission, will not be fully constituted because the Chief Justice is the Chairperson of that Commission. The implication is that the functions of the Judicial Service Commission, which generally, concentrate on the promotion and facilitation of the independence and accountability of the judiciary and the efficient, effective, and transparent administration of justice as detailed in Article 172(1) of the Constitution of the Republic of Kenya, will be negatively affected. Until a Chief Justice is appointed, the Judicial Service Commission will, briefly, lack a head that would do much in providing it with a reasonable sense of direction.
An impending constitutional crisis?
On the 27th day of May, 2016, the Court of Appeal ruled that the Deputy Chief Justice, Lady Justice Rawal, and another Supreme Court justice, Justice Tunoi should retire, but the two appealed, and the Supreme Court issued conservatory orders suspending the decision. The interesting bit is that the two are judges of the Supreme Court. Therefore, they sought to be heard before their brothers and sisters. Most definitely, those brothers and sisters of theirs would, in the eyes of an unsuspecting public, not fancy leaving members of their own family hanging.
Yesterday, being the last day in office for Mutunga, three justices sat to hear the Tunoi-Rawal appeal. There was, certainly no quorum to entertain the matter and the court had to down its tools. What this can be interpreted to me, is that there is, without a doubt, a constitutional crisis – the poor constitution of one of the arms of government.
One would be moved to ask whether the law envisages such eventualities. Unfortunately, it does not, thus, meaning that with the conservatory orders, they – the appellants – will be judges until the age of 74 instead of a constitutional limit of 70. The Deputy Chief Justice is already 74 and wants to stay. Her co-appellant, Justice Tunoi, is also 74. We can hardly imagine what will follow when, if it so happens, that the Court rejects her appeal. Suffice to note, the Judicial Service Commission has already advertised their positions.
The case of a tainted co-appellant!
The co-appellant in the Deputy Chief Justice’s matter, Justice Tunoi, who is a, and represents potential, but equally tainted candidates for the office of the Chief Justice, is another Supreme Court justice who is being investigated by a tribunal in bribery allegations. The co-appellant is said to have taken over KSH 200M in bribes in order to deliver judgement in favour of the Evans Kidero, the current Governor of Nairobi County.
The co-appellant’s response is that he will also speak out on how much the Supreme Court of Kenya judges were given to throw out Hon. Raila Odinga’s – a former presidential candidate – election petition.
We may not know much about his speaking out about the presidential election, but we know that the former Chief Justice did what he could possibly and diligently do, which was to set up a team to investigate said allegations.
It cannot be neglected that the position of the Chief Justice is a notable one that, beyond important responsibilities deriving from it, brings with it a plethora of privileges as well.
However, at a time when the Kenyan judiciary is riddled with allegations of corruption – a word which can be interpreted in more ways than one, it is our fervent hope that Kenya will, when everyone and everything is aligned, eventually get a new Chief Justice that it deserves, one whose name and/or reputation will not be tainted by their ills from the past, and that the process of his or her selection with be both as expedient and as transparent as possible and is expected, to be one who, when attending to, amongst other important matters, will be aware of and always remember the biblical message in which the former Chief Justice relayed his perspective when addressing the troubling issue of corruption, those words being; “in my lifetime, I have never met a rich man who is happy. They seem always concerned about themselves. Neither have I met a poor man who is happy. I have concluded that I prefer to stay in the middle. Even when they say; ‘about turn!’ the man in the middle is never affected.”