Not much daylight

The Supreme Court of Kenya is a funny old thing, isn't it? It at once mythic and feckless. It is now caught in a web of intrigue and suspicion, with the odds of a resolution of its affairs being very, very long. It's president, the Chief Justice, is in the cross-hairs of a lawyer with an axe to grind, having variously claimed that the Chief Justice is a member of a junta that has maneuvered to defeat the ends of justice and that e has lied, time and again, about the real reason for his early retirement being that he is a year older than he claims.

One of its judges is being investigated by a tribunal for having received a bribe of two million US dollars. Three of its judges were reprimanded by the Judicial Service Commission for going on strike! But it is over the question of when a judge should retire from the judiciary that has brought to a moment of crisis: is it at the age of 70 years as set out in the Constitution or is it at the age of 74 years as it was set out in the former constitution? The question must be answered because it affects the Deputy Chief Justice, the Supreme Court's deputy president and the aforementioned judge being investigated by a tribunal.

The High Court and the Court of Appeal, in a rare moment of judicial agreement, both say that the proper age of retirement for a judge, whether they joined the judiciary before or after August 27, 2010, is 70 years. The Judicial Service Commission, of which the Chief Justice is its chairperson, has already said that judges who have attained the age of 70 years should retire. (One other judge of the supreme court is a member of the Judicial Service Commission.)

This crisis was precipitated by the arrogance of the entire Supreme Court and its spectacular lack of preparation, incredible degree of infighting and astounding blindness to political realities. The Chief Justice was never going to serve his full term and a succession plan should have been among the first orders of business for not only the Supreme Court but also the Judicial Service Commission, instead of the incredible lunacy of new limousines for judges and a palace for the Chief Justice. The moment the spigots of the Consolidated Fund were opened, the infighting got out of hand, and that eroded the last of the political goodwill the Supreme Court - indeed, the Judiciary - enjoyed, and the nitpicky way the Judiciary dealt with key questions about the separation of powers betrayed a political tone-deafness that turned both the Executive and Parliament against it.

Independence begins with independence of thought and on that front, the Judiciary and the Supreme Court are about as independent as pea is from its pod. What shocks to the core is the remarkable degree of sameness in how the Judiciary sees things, especially when it comes to public funds and the privileges enjoyed by its seniormost officials. Now that it emerges that even cut-rate politicians seem to have a hand in how the Judiciary behaves, I am not surprised by the charges levelled against the Judiciary. The only difference between the Judiciary and Parliament, is that the Judiciary isn't officially elected. In every other respect - greed, perfidy, caprice, arrogance, mendacity - there isn't much daylight between the two.