JUDGING THE JUDGES

Four Years ago, Supreme Court Judges in Kenya were Castigated for Sort of Going on Strike. Did they Deserve it?

My first reaction when I read the news reports was consternation. ‘Supreme Court judges threaten to go on strike? How? Are they mad? Who on earth do they think they are?’ That was the sweep of the thoughts which swirled through my mind initially, but which eventually gave way to an odd kind of pleasure. My odd pleasure came off the selfish Ayn Rand-ish joy that the events would confirm a thesis that I had riffed on extensively in class and on Twitter: that the character and ability of too many of the judges on the Supreme Court of Kenya were at odds with the Constitution’s ideals. This particular point had consumed my mind starting around mid-2018, so much so that it become the centerpiece of a book proposal I wrote early 2019. So, you can imagine how during the day my hair was on fire about it but when I settled to sleep it was with a half-smile on my face, animated by the thought of a new data point to prove my contentions.

Alongside the fact that my book proposal flopped badly with prospective donors, more pressing issues took over my life and I put aside the whole project. I even relaxed my brimstone condemnation of the Court and its judges. That would be the case only until recently, when dabbling with Labor Law in the classroom and having access to more time to myself saw me recapture my interest in the events surrounding the Court around September 2015. In the mire of everything that took place, it is sometimes forgotten that Retirementgate was triggered by the Judicial Service Commission’s about-turn, which settled on the idea that Article 167 of the Constitution prescribed a mandatory retirement age of seventy applied to all judges whether hired before or after its promulgation in 2010.

That touched off a response in some judges that would leave me wondering then just how terrific their jobs were. The response tore apart the Supreme Court, which one would imagine was meant to be a lodestone for the rest of the judiciary. The Commission’s decision directly impacted two of the Court’s judges, then Justices Kalpana Rawal and Philip Tunoi, whose jobs were rather crudely advertised before the issue was settled and the rest lined up for and against. I suppose that was the Commission’s message that it was serious about business, but what it in turn led to was a very public battle within the Court that among others saw (depending on how you look at it and who you believe) two to three of the remaining five judges writing a letter to the Commission essentially telling it to back off or the judges of the Court would down their tools, and two of them going ahead to apparently do exactly that for two weeks. That led to incredibly vicious disputes, court cases, exceptional rebukes from public luminaries and petitions for removal from office. I was one of those who vociferously condemned the Retirementgate letter, but I recently experienced a change of heart of sorts, and in this essay I will explain why.

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When respected Nairobi litigator Pravin Bowry wrote in his regular Standard column on 4th March 2015 that “the question of retirement age of judicial officers in Kenya is developing to be a contentious one,” it was in fact an understatement of what had mutated into a very precarious situation. To understand what was happening, we have to begin at the changes which Article 167 of the Constitution of Kenya (promulgated on 27 August 2010) brought to play. In what one would consider the clearest terms possible, the Article provides that ‘a judge shall retire from office after attaining the age of seventy years, but may elect to retire any time after attaining the age of sixty-five years.’ It is still hard to believe that such a short, seemingly clear line of words would upend the courts as much. But the Constitution also had transitional clauses that included the Sixth Schedule, which in Sections 31 (1) and (2) provided that any person hired in an office established under the repealed constitution would continue to hold office for the unexpired period. Then there was the fact that before this Constitution came into effect, retirement age for judges was set at seventy-four years under Section 9 of the Judicature Act, and that Act was not repealed after the Constitution came into force. Whatever you may think of them, lawyers are incredibly creative in interpreting law — especially when their interests are on the line. One is reminded here of a famous quote attributed to Samuel Johnson that ‘…when a man is to be hanged in a fortnight, it concentrates his mind wonderfully.’ And that is exactly what happened.

The argument that sprang from the affected judges’ proxies was that since some of them were hired under the repealed constitution, the controlling law for their retirement age remained Section 9 of the Judicature Act and Article 167’s provisions did not apply to them. Obviously, the argument was also heavily dependent on Sections 31 (1) and (2) of the Sixth Schedule. You would think it flew because on May 24 2011, the Judicial Service Commission released a circular to all judges informing them that the retirement age for all previously-serving judges would be seventy-four years. The Commission grounded its advice on Section 31 (1) of the transitional Sixth Schedule of the Constitution. I must admit that before I engaged with this position in more detail, I thought it was quite ridiculous. I believed that Judges had taken a new oath of office under the new Constitution and that was all there was to say about it. I now recognize that the situation was not as clear, and the counterargument was anything but ridiculous. It raised complex constitutional questions particularly about how to interpret transitional clauses for example, and it is not entirely clear what the Commission had told or not told the judges who interviewed for newly established offices under the new constitution regarding what their retirement age would be. So for me, mea culpa number one.

If there was one group that seemed to have been the beneficiary of a very generous reprieve, it was the Commission. Second chances are in short supply these days but not when it came to its commissioners. On 27 March 2014, almost three years on (I still gasp at this), the Commission issued a fresh memo declaring their old position constitutionally suspect and giving notice that the Constitution actually prescribed the retirement age of all judges to be seventy years. The commissioners shrugged off their old circular as ‘a mistake’ that could no longer be relied on, although there is some evidence that they relied on a mysterious legal opinion issued by the Attorney General then, Professor Githu Muigai. Whatever the case, no one has ever taken direct responsibility for this ‘mistake,’ that would have direct consequences on the employment expectations of a number of judges in the Kenyan courts, a fact that is surely an inescapable embarrassment on the institution. It was the beginning of what I now think was irresponsible treatment of the judges who were caught up in this situation. That second circular is what officially kicked off Retirementgate, a string of so many dense events that for me shook up the remaining public goodwill that the newly-established Supreme Court enjoyed.

A number of judges found themselves in the crosshairs of this new circular but I will jump straight to those at the Supreme Court which — possibly because of its heft — is where the vicious disputes really played out. The two who would soon be required to relinquish their positions were then Deputy Chief Justice Lady Justice Kaplana Hamsukhrai Rawal and Mr. Justice Philip Kiptoo Tunoi, who were both issued with retirement notices and plans set in motion to recruit their successors. While Justice Rawal had served many years as a judge without any particularly outstanding legacy, Justice Tunoi’s legacy was far more grim. He was on suspension, widely reported to have taken part in corrupt dealings and at one point is on record for defending himself as “not remembering” a decision that was made after a payoff. That said, it did not take long for the rest of the Supreme Court bench to get sucked into Retirementgate. Two of them, Chief Justice Willy Munyoki Mutunga and Mr. Justice Smokin Charles Wanjala, sat on the Judicial Service Commission and it was not difficult to envisage a tenuous situation erupting for them. The remaining three — Justices Mohamed Ibrahim, Jackton Boma Ojwang and Njoki Ndung’u — were the alleged authors of the infamous letter to the Commission. The facts are murky but it seems Justice Ibrahim later withdrew to leave only two standing with the letter. At this point, you must be wondering how it imploded to the point which they had to write a letter threatening to down their tools but hold on just one moment.

For many observers, the earliest signs of trouble arrived in the form of the Court’s October 2015 opinion in the Nick Salat case. There, what should have otherwise been a run-of-the-mill election petition turned into a discussion of the retirement age question with Justices Rawal, Tunoi, Ojwang and Ndung’u writing a majority opinion that took “judicial notice” of the Judicial Service Commission’s actions and called on its members to respect the security of tenure of judges. Although that interpretation was later rejected, many had at that time considered their decision to be a roundabout assertion that retirement age would be seventy-four years. The Chief Justice’s bristling dissent accused the majority of “judicial utadoism” (Kenya’s slang equivalent of America’s ‘what you gon’ do?’) by using the forum offered by the suit in the manner which they had. While it certainly seemed improper, the merits of their assessment would require an exegesis to discuss so I will give it a wide berth. And as it turned out, Nick Salat was merely a tip of the iceberg, and the mass of ice was more significant than would have been thought.

By the standards of Kenya’s gossipy backrooms, it is surprising that it was only in 2017 that the consuming details of the letter properly hit the news-cycle. For that we had Chief Justice Mutunga to thank. According to his gripping affidavit that was made public around August 2017, the infamous letter was written on 24 September 2015 and signed by Justices Njoki Ndung’u, Ojwang and Ibrahim. The letter threatened ‘a moratorium on all of the Supreme Court’s operations with immediate effect’ because of the Commission’s actions with regards to retirement of Justices Rawal and Tunoi. It was said to have been written on behalf of the entire Supreme Court bench, an account that was severely disputed by Chief Justice Mutunga, who instead sensationally insisted that Justice Ndung’u falsified the minutes of a Court conference. To top it all off, the Chief claimed that Justices Ndung’u and Ojwang’ acted on their threats for two weeks, time within which various matters on the Court’s docket had to be taken out due to a lack of quorum. Curiously, Justice Ibrahim availed himself for sittings despite also signing the letter. When it all came to light, the legal fraternity was appalled by the judges’ behavior, calling for their necks. The Chief Executive of the Law Society of Kenya drafted a petition seeking removal of the judges involved and even more drastically, the Chairman entertained the idea of abolishing the Court. I was part of the bandwagon that hit out at the judges, but I believe now that we all missed two vital parts of the picture: the possibility that this was a fight for labor justice and an emerging trend of concerning lack of accountability at the Commission.

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Workers who feel deeply aggrieved by what they deem an injustice related to their jobs often exercise the elemental tool of worker protest: the withholding of labor power. This is regularly the only road down which a liberal-capitalist society, with its multifarious power relations and forms of institutional and communication patterns leads them. Just as well, liberal labor law is the product of thought that promotes ‘peaceful’ resolution of industrial disputes within formalized, bureaucratic channels. When American labor law scholar Karl Klare wrote Labor Law and Radical Critique in 1982, he observed that the liberal ideas within which collective action was circumscribed in labor law occupied a frame that had three components. The first was a conception of collective action that simultaneously encouraged and at the same time confined worker self-expression in the mire of industrial conflict. And that was achieved by the impeding solidarity and creating highly formal channels for self-expression within industrial conflict. Many things have changed since 1982 but this has not, and the truth is that it has become even more clear to us that those formalized channels are just a rehash of existing power structures.

The limitation of employee participation in workplace governance is the second component that Klare saw, something that later political theorists like Elizabeth Anderson have likewise identified as an incessant problem in the organization of society. To demonstrate this, Anderson has narrated an account about how her time working at a bank in Harvard Square when she was young showed her the way hierarchical structures could be used to place exacting limits on employee participation in decisions that affect their well-being. In her discussion of the bank scenario she experienced, Anderson points particularly to a decision to reorganize the sitting structure of the bookkeepers as a sinister attempt not to design the workplace to increase productivity but to reduce worker interaction and the consequential possibility of growing solidarity. Klare called this situation an ‘industrial democracy’ which tended to limit participation of workers to concerns regarding terms of their labor as opposed to how the work process was organized. Of course, this neatly merged into the underlying liberal idea of labor as requiring facile disinvestment and mobility of capital.

Klare would eventually call for a reimagining of the frame within which societal thinking about liberal labor law was clearly boxed into, a reimagination that would break down these old boundaries, at a lower level allow for easier deployment of industrial action and at a higher level allow for a more radical workplace democracy where workers were fully engaged and could have sufficient input on all aspects touching on their labor. It is easy to see why Elizabeth Anderson would agree with this latter idea too, given that her understanding of freedom has everything to do with enabling people’s equal participation in a democratic polity. Yet all these years later, there has been little change to the frame that Klare decried. What was foreclosed then remains foreclosed in liberal labor law and one would suspect that might be because the changes demanded are still deemed by some to be too radical. But are they really that radical? I suspect as well that it is also just very difficult to alter people’s sensibilities on these matters, which for many have been shaped by coming up in a system that was organized in the liberal-capitalist way I described.

Like most other law and the policy upon which it is constructed, labor law and its theory in Kenya was received through colonization and the frame through which collective action disputes are examined is therefore undoubtedly as liberal as the one Klare and Anderson staked out. The Labor Relations Act is the primary controlling statute for collective action, and it defines a strike as most liberal laws do: more or less a concerted effort by workers who come together to withhold their labor because of a dispute with management. Like only a liberal wolf would, with one hand it presents itself as a sheep and protects the right while with the other it becomes a wolf and qualifies the right by providing for a raft of situations where workers are expected to end a strike and — for workers part of ‘essential services’ — not to go on strike at all. Outside that, there exists no particularly differentiated expectation for public sector workers, although it is certainly true that both the much more autochthonous code of conduct for judicial officers and constitutional provisions touching on the conduct of public and state officers devote a lot of emphasis on sacrifice and responsibility.

Many lawyers might have cold feet as they imagine the violence on legal doctrine that the kind of shift Klare called for would require, but thinkers such as Lewis Sargentich convincingly argue that to be a somewhat misplaced worry. I sat down with him in his unexpectedly neat Harvard Law office and he smiled kindly as he started responding to the question I put to him. “The language of law” he began, “is nearly always infused with numerous possibilities that can be fit into various contexts. At any point in time, one may be dominant and another peripheral but whatever the case, the language has more than enough to facilitate a switch of places one day.” It takes anything but a seasoned scholar to see his point. And the more I think about it, the more I believe that Kenya’s Constitution is an especially excellent advertisement for this assertion, given that it confers a robust right to strike in its forty-first Article, one with enormous possibility for those interested in labor justice.

That right can of course be limited (as the Labor Relations Act does) but the point here is that it can be interpreted in a way to transform the existing liberal frame, given especially how pliable the provisions guiding its interpretation are. Even more persuasively, when it was being written and then passed and promulgated, people hailed the spirit behind the Constitution to be a transformative one a la the South African Constitution. Given flesh, many understand that to mean it was among others meant to be a bridge from a culture of authority to a culture of justification, from a culture of powerful hierarchies where those perched at the top make decisions without a bother to one where accountability, consultation and democratization are demanded at every turn. But all this may be easier said than done. How do we think about these ideas? Do they apply to only some individuals and groups and not others?

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One day early this year, I found myself more eager than usual to go court-watching because I had got wind of information that Justice Ndung’u would be cross-examined in a session that day. The cross examination would be one part of an ongoing case in which she had sued the Commission for censuring her for the strike, and that case had in time been enjoined with another in which then-Law Society of Kenya chief executive Apollo Mboya had likewise quite twistedly sued the Commission for not recommending the ouster of all the judges who withdrew their labor. As it happened, Justice Ndung’u never showed up and the session was delayed to a later date. It was nonetheless far from wasted time for me as I got to get a good sense of the legal arguments that were to be canvassed. Interestingly, I later came to learn that this was itself a big score since the file was amusingly placed under seal as soon as each session was over. The arguments for Justices Ndung’u and Ojwang’ had a lot to do with them protesting a denial of administrative justice by the Commission and I thought they were fairly powerful. In fact, they were the reason I began rethinking my approach to Retirementgate. Yet much later, I thought they could also have confronted this as a fight for labor justice.

Of all the things that qualify to be issues of labor justice, does this not? Let us get some perspective here. For three entire years, a group of employees carried on with their work having been assured by management that their retirement age would be seventy-four years. Suddenly, management turns around and declares that assurance to have been incorrect and no longer reliable, and that the proper retirement age ought to be seventy years. Is this not definitely an issue that touches on the terms of employment, which even within the liberal frame is one of the main issues for which workers withhold their labor? Justices Ndung’u and Ojwang also very prominently argued that what was at stake was the independence of the judiciary, a point which I think still fits well into the idea that employees are often just as interested in the organization of work process within which they are expected to commit their labor, and for that reason their voices should not be shut down. A regular riposte then was the very skeptical position that the judges just wanted more years to earn more money and perks from taxpayer funds. I think that point is as speculative as it is arguable when one considers that Justice Ndung’u at around fifty-one years old was then possibly the youngest member of the Court, and that the judges being retired were in any event almost certainly assured of a good payoff at the end. But even taking that argument on its terms, is the idea that judges ought to be a special set of workers who do not think at all about their perks not placing an unfair and unreasonable burden upon them?

I hardly think that it would it be over-ambitious to ask the vast majority of workers in Kenya to awake their cognitive empathy and imagine themselves in situations similar to the one in which the judges found themselves. Indeed, unfair changes in terms and decisions that affect work processes are the reality for a significant majority of workers in Kenya today. Only the ever-present fear of joblessness has harangued many into believing bootstrap theories that urge them to ‘accept their fate’ and ‘work hard’ within the conditions that they find themselves. So why were people like me so upset with the judges? My suspicion is that there is an understandable resentment to the possibility that a cadre of employees on a salary of nearly ten thousand dollars a month plus a retinue of other taxpayer-funded perks can still go on strike in a country where so many others have it so much worse. How else do you explain the fact that many Kenyans have often responded with more sympathy and solidarity towards the nurses and doctors who take part in civil disobedience for better working terms and processes? Yet if what I have hypothesized is true, our lack of sympathy towards the judges reveals the continued dominance of the old frame of liberal thought in which it is believed that labor ought to operate in a facile and disinvested manner. In response, we have to remember that our Constitution’s ideals do not leave out any group of workers, and anyone who stands up for a fellow worker really ought to attract more understanding, especially when the power dynamic is concerning. Which brings me to the question of the Commission.

It seems to me that the time has come to urgently scrutinize the Judicial Service Commission’s use of authority. Its extremely consequential determinations are still made in a rather opaque manner and even more surprisingly, despite bungling a number of situations it has come away rather unscathed. Part of that has to do with a dangerous and belligerent refusal on its part to be overseen the way every other public officer and body is. The idea of placing a specialized body in charge of all issues to do with judicial stuff is not that new, but unusual independence given to such a body is more recent. That arrived as part of an experiment to make government more accountable by having other independent bodies overseeing its different responsibilities. Scholar John Osogo Ambani has written an award-winning thesis on the troubles which the experiment creates for a traditional understanding of separation of powers, but we have lately found a way to make it work, even if imperfectly. Part of the tenuous balance is found by ensuring that these independent bodies are subjected to the same checks that the rest of government is. Yet it would appear that the Judicial Service Commission has made itself the first among equals.

Nearly six years ago, the Commission was entangled in another labor dispute after it took action on then-Chief Registrar of the Judiciary Gladys Boss Shollei. That and other events triggered Parliament’s interest and the Commission was summoned to appear before the Justice and Legal Affairs Committee. It refused to do so, speciously citing the need to preserve ‘independence and separation of powers’ as well as making a stronger case of some of the issues being sub-judice at that moment. Thankfully, a High Court decision a little later made it clear that the Commission was subject to Parliamentary oversight, even though that court still — unfortunately — sided with the Commission on the question of whether it had to appear and respond to some of the issues. I say unfortunate because of how strongly I felt (and still do feel) that the court in that instance enabled the Commission’s dangerous and unwarranted exceptionalism. Certainly, we have a history of Parliamentarians abusing their powers to protect their cronies and I agree that such a worry is worth guarding against. Nonetheless, that cannot mean that Parliament is altogether estopped from in-session questioning of Commissioners. Courts can intervene after Parliament takes resultant action, but to prevent it from asking questions of the Commission seems incredulous to me. Parliament may have many faults, but at the end of the day it is the body most representative of the people.

I digressed only because I believe the sensibilities that have been annealing in both the Commission and in many of us who are expected to speak out when things are going off the rails is what allowed it to elude responsibility for its damaging roundabout on retirement age and thereafter its embarrassing face-off with the judges. With respect to Retirementgate, it is worth remembering that the Commission was allowed to escape their share of blame but the cost of their bad judgement was a great deal of time wasted, millions worth of taxpayer monies that went into the consequent litigation and how the whole situation was handled made a big dent on the Supreme Court’s public repute. At an advanced stage of writing this essay, I reexamined the Commission’s response to the infamous letter once again. “Unacceptable blackmail” was what it termed it, which seem the poignant words of a person prepared to dig in. And indeed, in the thick of things, it was the Law Society of Kenya (new Chairman Isaac Okero was in place by then) which attempted to broker an out-of-court settlement. Given the hardline positions that had been taken, that too foundered but the fact that it was the Law Society which tried rather than the Commission on its own volition is in my opinion worth noting.

I also mined the arguments in the dispute between the Commission and Parliament, and one big argument that the Commission relied on was that the Constitution protected its members from being targeted for decisions made in good faith. Which is technically true, but we cannot surely take it to be the case that the people through the Constitution intended that to be a blanket check for zero accountability. The sensibility that sustains this idea is the product of a notion long held by constitutional elitists that ordinary political energy ought to be kept out of constitutional law because it somehow springs from states of mind and temperaments that are presumed to be defective. For the twin goals of accountability and democratization to remain within reach, the Constitution surely requires that we shun such thoughts. And if the detrimental power hierarchies that exist are to be broken down, we cannot afford to leave out any set of workers.

Make no mistake, the Commission retains significant powers. From a labor justice perspective, it has the sole right to hire, discipline and recommend panels for removal of senior judges. Surely, the exercise of these powers demands extra scrutiny, and I propose that our agenda of concern begins with asking that they “open the server” on their decisions. I see no reasons why all the Commission’s minutes and discussions should not be made public and where need be redacted. I was heartened to see an outcry earlier this year when it decided to hold judicial interviews in private, and we ought to sustain these demands and push them as far as we can. I am convinced that only if we remain eternally vigilant will the Commission’s high-handedness be cut to size, and only then will it be helped on its way to being a model for the move from a culture of authority to a culture of justification.

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Retirementgate eventually closed its curtains at the Court of Appeal, which decided that the seventy-year provision in Article 167 applied to all judges. Of course, there was still time for one last piece of drama after that as Justice Rawal tried to appeal the decision to the Supreme Court. And for a moment, she seemed to stand a good chance as Justice Ndung’u took what many considered the suspect and unusual step of staying the Court of Appeal’s orders pending the appeal’s hearing and determination, which set up the case to have its day at the Supreme Court. That decision by Justice Ndung’u made her the target of a fresh round of vociferous criticism and led to the interdiction of then Supreme Court deputy registrar Lucy Njora. At this point it seems only fair to once again point out that it took nearly two years before Lucy Njora’s labor dispute was heard by the Commission. In that hearing, it was reported that Chief Justice Mutunga was not called as a witness and Ms Njora was dismissed without detailed reasons. Perhaps as some sort of additional vindication for the case I have made about the JSC’s struggles with labor justice and exercise of authority, in September this year the Labor Court order her reinstatement without any loss of salary or benefits.

The litigation ended when Supreme Court paved the way for the Court of Appeal’s decision to be the final word by a three-to-two preliminary decision in which the Chief, Justices Wanjala and Ibrahim determined that they could not hear the matter because their interests would be seen as partial. The legacy of Retirementgate is rarely talked about, but I think it is tremendous. It rattled the public confidence and goodwill that the Supreme Court of Kenya was already bleeding after previous fiascos. As I was writing this, I came across a news story that I had not seen before, which discussed leaked emails that were exchanged between the Chief Justice and Justice Ndung’u and it made me wince. Even the tabloids had their fun with the story, writing stories that I see no good restating here. It is important to be clear that I am not saying that the judges ought to have retired at seventy-four, and neither am I defending the actions of Justice Ndung’u, Ojwang’, Tunoi (goodness no) or Rawal throughout this saga. Many times they probably acted in very questionable ways. Yet reflecting over this all this now, in one fundamental I think that I (and I hope many will see themselves alongside me) should have considered the possibility that their battle with the Commission was one in which labor justice and our Constitution’s ideals about fairness were on the guillotine. And the Commission has over time given us enough evidence to believe that their power needs to be scrutinized more carefully. So for me, mea culpa number two.

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