Willy Mutunga’s Swan Song: The retirement of judges in Kenya

Retired Chief Justice Willy Mutunga bids farewell to members of the judiciary on June 16, 2016 at the Supreme Court, Nairobi. He retired before his time but stopped colleagues who wanted to leave after their time. PHOTO | JEPTUM CHESIYNA | NATION MEDIA GROUP 

By Wachira Maina

In Summary

• Greatest loser is the Supreme Court: This tawdry affair has left its reputation in tatters, while the sharp personal and judicial divisions have undermined its unified voice.
• Chief Justice Willy Mutunga retired before his time but stopped colleagues who wanted to leave after their time.

It is a truism that hard cases make bad law. And yet sometimes it is the simple cases that vex. Until last week, Kenya has been enthralled by the question whether a judge serving under a new constitution but appointed under the old can claim some of the benefits of the old while serving tenure under the new.

That question was raised by two judges of the Supreme Court: Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi. They were told by the Judicial Service Commission (JSC) that having attained the retirement age of 70 years, mandated by the new Constitution, they were not eligible to continue serving. A High Court bench of five agreed with the JSC.

The two judges appealed to the Court of Appeal: a bench of seven unanimously agreed with the High Court. They then appealed to the Supreme Court, the court in which the two served. Deputy Chief Justice Rawal sought and obtained from her colleague, Justice Njoki Ndung’u, a series of orders.

First, she successfully asked Justice Njoki to certify her ex parte application as urgent. Based on that she got seven additional orders: one to suspend the decision of the Court Appeal; a second to continue serving as a Supreme Court judge; a third to stop the JSC from advertising any vacancy in the office that she occupies; a fifth to bar the JSC from retiring her; a sixth to allow her to act as the Chief Justice if there should be a vacancy in the office, and a seventh to clarify to the JSC that all judges appointed before the August 27, 2010 — that is under the old Constitution — were eligible to be appointed as Supreme Court Judges or Chief Justice even if they had attained the age of seventy.

Appraised of these goings on, Chief Justice Willy Mutunga, noting that these orders had been certified as urgent, invoked his “administrative powers” to fast track the hearing. He instructed the Registrar to serve the parties to appear for an inter-parties hearing before a five-judge bench on June 2, 2016, rather than June 24, the date Justice Ndung’u had set.

These instructions aggrieved both Rawal and Tunoi who now argued that the CJ was interfering “with the judicial orders” of justice Ndung’u. They filed objections condemning the Chief Justice for issuing “outrightly illegal directions” based on “nebulous” “administrative powers.

Two opposing applications were then made. The first by the JSC to set aside Justice Ndung’u’s orders; to strike out Justice Rawal’s Notice of Appeal.

The second application was by Mr Okiya Omtatah, a citizen who had been involved in the case since it was first filed in the High Court. The gravamen of his preliminary objection was that all judges of the Supreme Court had earlier “either supported or opposed” the proposition that “judges appointed under the repealed Constitution” should retire at age 70.

Interference

Crucial to the first objection was the scope of Justice Ndung’u’s order as against the date changes in chief justice Mutunga’s order. Justice Mutunga did not reverse Justice Ndung’u’s ex parte orders suspending the implementation of the decision of the Court of Appeal.

He merely changed the date for the inter-partes hearing. Since the charge by Justice Rawal and Justice Tunoi was that Mutunga interfered with Justice Ndung’u’s judicial decision, the legal issue in play is whether setting the date of hearing is a judicial decision.

Technically speaking, a judicial decision relates to an issue in dispute: when a case should be heard may but rarely is an issue in dispute. Both Ndung’u and Justice J.B. Ojwang were plainly wrong: Revising the date of the hearing is not a judicial decision, it is an administrative one.

Judicial mischief

And although Justice Ndung’u exhausted herself excoriating Justice Mutunga and justifying herself on this, her ex parte decision smirks of judicial mischief. Consider. Rawal came to the Supreme Court at “lightning speed” in the words of Chief Justice Mutunga.

Given this initial urgency, it is puzzling in the extreme that she did not protest the fact that Justice Ndung’u set the hearing date one month from the date of the ex parte order. Digging a little deeper, this date puts both Justice Rawal’s ‘urgency’ and Justice Ndung’u’s motives under severe scrutiny

Justice Ndung’u knew that Chief Justice Mutunga would retire on June 16. With Justice Tonui out fighting bribery claims in a tribunal and Justice Rawal herself unable to sit to hear her own appeal, the Supreme Court — which must have a minimum of five judges to sit — would not have sat on June 24.

Justice Ndung’u’s ex parte order, as Justice Smokin Wanjala wryly noted, would then have effectively granted Justice Rawal the appeal she wanted because, without a bench to hear her case, she would have continued to sit as judge. With Justice Mutunga retired on the June 16, Justice Rawal would have become acting chief justice.

As CJ, she would have had administrative and judicial sway over the courts. She would have sat on the JSC and actively participated in the hiring of the next CJ. She would even have been eligible to apply for that post. More perniciously, if Justice Tunoi’s appeal came before her, she could have refused to recuse herself — as Justice Ndung’u and Justice Ojwang did in her case- and with her vote, Justice Ndung’u’s and Justice Ojwang’s, she could have settled the judge’s retirement age at 74.

Thus far, the first objection. The second objection, Okiyah Omtatah’s, was that the Supreme Court should not hear the case because individual judges of the court were biased.

That charge rested on the following claims: Chief Justice Willy Mutunga and Smokin Wanjala both served on the JSC and the commission had already decided that 70 was the retirement age; Justices Rawal, Tunoi, Ibrahim, Ojwang, and Ndung’u had written a memorandum to the JSC, in which they had categorically demanded that the Judiciary “formally acknowledge” that their retirement age was 74. In addition, Justices Ndung’u and Ojwang, had already addressed the question in the case of Nicholas Salat v. IEBC and Others.

Three arguments were made to resist the bias claim. First, counsel for Justices Rawal and Tunoi argued that comments made by the judges in the Salat case could not anchor a bias claim, ostensibly because the High Court had already decided in Kalpana H. Rawal v. Judicial Service Commission that the Supreme Court had not determined the retirement age of judges.

Moreover, the argument went, the claims of bias rested on positions “taken outside the court.” Counsel argued that Justice Ojwang even published articles and books outside his judicial function. Presumably, this was a suggestion that a party cannot raise a claim of bias based on scholarly or out of court publications.

As the majority on the Supreme Court appreciated, Justices Ndung’u and Ojwang misconceived the nature of Judicial bias. It does not matter that a judge made comments that reveal bias outside court or even in a scholarly article.

As Mathew Groves persuasively argues in “Public Statements by Judges and the Bias Rule" even things said in scholarly articles can trigger claims of bias and so disqualification.

For instance, in the English case of Locabail (UK) Ltd v. Bayfield Properties Ltd, the Court of Appeal held that scholarly publications could lead to disqualification where as in that case, a part-time judge who specialised in personal injury cases, had written four articles criticising the conduct of large insurance companies and praised “decisions favouring claimants.”

His articles also questioned “whether a change of culture in personal injury litigation was possible.” The court thought that these articles properly supported the argument that this particular judge was a committed advocate of the cause of claimants generally.” It is, therefore, no argument against a claim of bias that the statements made were extra judicial.

It is true that judges do not live in “monastic seclusions” and they do not come to court as empty vessels with no views and prejudgments. But if they express themselves strongly on an issue they must be aware, as Groves notes, that their “extrajudicial pronouncements” may have no judicial authority but the “lay public may not appreciate that opinions expressed by judges extra-judicially are not authoritative in the way that opinions expressed in court judgments usually are.”

Degree of finality

In writing to the JSC about the age of retirement, the judges had expressed themselves with a degree of finality that would lead a reasonable person to conclude that they would not listen to the case with an open mind. So it is not enough for Justices Ndung’u and Ojwang to make hortatory claims that they could keep an open mind on the question.

And the argument that they had not made any conclusive findings on retirement in the Salat case is unpersuasive. In the Salat case the three judges “played a critical role and gave shape” to the very events that were at issue in the Justices Rawal and Tonui appeal.