By: IBRAHIM ORUKO
IN the event of a disputed result the winner of the next presidential election will likely be determined by the Supreme Court, as was the case in 2013.
Jockeying is underway for the position of Chief Justice as the president of the court, CJ Willy Mutunga, is to retire before the election.
A case filed by one of the Supreme Court judges, Philip Tunoi, challenging the retirement age, will play a crucial role in shaping the composition of the next Court.
Justice Tunoi seeks a declaration that judges who were appointed under the old constitution do not have to retire at 70 as stipulated in the current constitution. If he wins, Deputy Chief Justice Kalpana Rawal will stay on in office, as acting CJ.
She is due to retire on age grounds, on December 15, 2015. The old constitution set judges’ retirement age at 74. But if Justice Tunoi loses his case, both he and Rawal will have to go home. Their departure and that of Mutunga will leave three positions empty in the Supreme Court.
It is these three seats that have attracted the most intense lobbying and attention. In the succession war, career judicial officers insist one of them must succeed Mutunga. The Judicial Service Commission is increasingly alarmed by the intensity of the campaigns.
Several lawyers we spoke to said the unfolding succession scheme is controlled by forces out to roll back the gains the Judiciary has made under Mutunga’s stewardship.
They said the intensity is motivated by the desire by some powerful forces, both within and outside government, to control the Supreme Court.
Apart from being the head of the Judiciary, the CJ is the final arbiter in presidential election disputes.
“The desire to control the Supreme Court stems from the feeling that having a pliant Chief Justice places one at a vantage point in determining who becomes the President of Kenya,” said a source.
Sources have told the Star that Rawal has refused to proceed on her terminal leave even after she was served with a letter asking her to do so.
Chief Registrar of the Judiciary Anne Amadi is said to have written to the JSC informing members of the end of Rawal’s contract in December and the fact that she had accumulated 70 days’ annual leave.
In the registrar’s view, Rawal should have proceeded on leave last June to pave way for the JSC to start the process of her replacement. Rawal is said to have refused to pick up the letter and has warned the JSC of court action should it push her out.
The DCJ is said to enjoy the support of powerful individuals. Justice David Onyancha of the High Court has filed a case similar to Justice Tunoi’s, seeking orders to block the JSC from retiring judges aged over 70.
Tom Ojienda, who represents the LSK on the JSC, admitted that the issue of judicial officers’ retirement remains sensitive, pending the outcome of the case filed by the two judges.