Opinion divided on whether the country will face an unprecedented crisis if an overhaul of the Supreme Court succeeds.
On one hand, experts interviewed by The Standard on Sunday argue that the country is dancing on a thin rope above a fire to consider overhauling the Supreme Court, while others hold the opinion that only the presidency can operate without a substantive person.
Lawyer Kibe Mungai says that the current saga amounts to overthrowing the Constitution.
In an interview , Kibe said the legitimacy of a government is determined by its three working arms — the Executive, Legislature and Judiciary
Nevertheless, he states that removing an entire Supreme Court bench would mean that the Judiciary is not functioning properly.
He argues that where one government arm is not functioning, then the legitimacy of an entire government is in question.
“We cannot overhaul the entire Supreme Court. The scheme is that the Constitution is being overthrown. We have three arms of government, and all three arms functioning for the government to be established,” says Kibe
Pointing out, “Where there is a defect on one arm, it means you have no government. It touches on the legality of government,”
State of emergency
He observes that , if anything happens and the President declares a state of emergency, without an apex court, it would be left to the politicians to decide when to end it.
He claims that the President will control the Judicial Service Commission (JSC) and, ultimately, the Judiciary, as he will have the majority of commissioners to appoint judges,” he says.
“ JSC recommends the appointment of judges and the Chief Justice is the chair. If you look at the composition, it includes the President, laypersons and the Attorney General. Without the Chief Justice, judges and magistrate, the Law Society of Kenya representatives can make their choices. This majority can pack the Judiciary with the President’s favourites.
“You will have JSC headed by politicians. It will mean we have circumvented the law to have the Executive have a final say on appointing judges,” he says.
Kibe believes that Kenyans have nowhere to go with the current claims of extending the presidential term and implementing the National Dialogue Committee (NADCO) report.
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Meanwhile, Senior Counsel Charles Kanjama says there is no crisis in removing the entire bench. According to him, it is only the President’s office that cannot remain vacant, and to some, the governors.
He says the country has operated before without the Supreme Court functioning when Chief Justice Willy Mutunga left office.
“The truth is that the country can function without the Supreme Court. We must end this notion by the State officers that they are indispensable, they can leave for one reason or another. If the Supreme Court is not there, there is the Court of Appeal, the high court. TheJudiciary cannot stop functioning without the Supreme Court, says Kanjama.
Lawyer Willis Otieno shares Kanjama’s view of the Supreme Court. Nevertheless, he argues that the current onslaught is unfair.
According to him, the country took some time to establish the Supreme Court after transitioning to the 2010 Constitution. However, this did not prevent the country from entering gridlock.
According to him, the functions of the apex court can be handled by the Court of Appeal.
Nevertheless, he argues that it is not just to remove all judges enmass through public lynching.
“ My only concern is that the process should be fair enough. It should not be through mass hysteria as we are witnessing. Even if judges are unfair, we owe to them to give them justice. On the other hand, they should not tell us there will be a crisis. Supreme Court is not the judiciary,” states Otieno.
Supreme Court Judge Isaac Lenaola has been vocal on the current state of affairs.
He argued in a public lecture at the University of Embu last week that the country risks sinking as it hurtles towards the 2027 General Election.
He said that although removing a judge is an individual issue, adding that a blanket onslaught against the Supreme Court is a pointer of more trouble ahead, having a country without a Supreme Court.
Solid grounds
According to the senior judge, there should be serious and solid grounds for removing an apex court judge, not social media games.
“Removal of an apex court of a country is disseminating a whole arm of government. You cannot have a democracy when a whole arm of government has collapsed. If ever the Judiciary collapses in any country, that is the end of any attempt to that country being called democratic,’’ Justice Lenaola said.
In December last year, the judge raised alarm about the lack of a functioning Independent Electoral and Boundaries Commission (IEBC).
The country is behind schedule for reviewing electoral boundaries, which should happen every eight to twelve years.
Nevertheless, IEBC, without the commissioners, sought an opinion from the apex on whether the review could be extended. Its CEO, Hussein Marjan, said the country faces a severe constitutional crisis because it failed to review electoral boundaries by March 2024.
Former Law Society of Kenya Nelson Havi, who is among the proponents of overhauling the entire Supreme Court bench, takes a radical stand.
He avers that it is better for the country to have an accountable Judiciary than continue with the current bench. He claims his is a war against corruption.
On the other hand, Evance Ndong, a constitutional lawyer, argues that removing the entire Supreme Court at once is impermissible and an absurdity.
Ndong asserts that the JSC Act dictates that a complainant must file a petition, not a blanket one. He believes that without cogent evidence of collusion, one can read politics.
He observes that the commission’s structure prevents it from reviewing a judge’s or magistrate’s judgment to decide whether someone is incompetent or committed gross misconduct.
He argues that if the commission were to sit to review the Supreme Court’s decisions, Justice Mohamed Ibrahim and Chief Justice Martha Koome would not sit in the commission.
According to him, then, it is left to Isaac Ruto, a politician, to steer the rest of the commissioners, who are from the court of appeal, the High Court, a magistrate, two from the Law Society of Kenya (LSK), the Attorney General, and a lay representative, to decide whether to send the files to the president to empanel a bench for removal.
According to Ndong, this is an absurdity.
“ You are telling me that the nine remaining commissioners, a court of appeal judge, a high court judge, and magistrate, the two lawyers and the Public Service Commission representative will sit to review complex issues such as Nyutu agrovet case, look at judicial principles and decide Supreme Court erred?” he added.
Ndong said the current apex court saga is akin to Justice Aaron Ringera’s radical surgery, which the commission is not empowered to carry out.
“The waters we are creating are very mucky. Even if you want to remove all Supreme Court judges, it must be one at a time. Merit of a decision cannot be a crown for a removal. If the Supreme Court agreed with a Court of Appeal bench, or a High Court judge, why are we not going after all those who decided in the lower courts?” he pauses.
He further argues that the country cannot run without an apex court. According to him, a removal of all judges at once will first cripple the chance of them appealing the tribunals decisions.
