It is time for Kenya to rethink the number of judges at the Supreme Court

The just-concluded interviews in the search for a Supreme Court Judge to replace the late Justice Ibrahim have given us Justice Mohammed Warsame. Reflecting on our history of the judiciary that was coloured by opacity in the appointment of judges and the subsequent boiling point of the trust poverty on the judiciary, that is the 2007 post-election violence that was shy of creating a pause to Kenya the nation and Kenya the Republic. Even the fiercest critics of the Constitution as a potential barrier to our ‘development agenda’ will tell you that even in the wildest of dreams, had we ever thought of having a full glare of the Judges' interviews on national television channels, let alone those of the Apex Court. In those two days of interviews by the Judicial Service Commission, several themes came out through the rigorous grilling of various candidates, but most notably for purposes of this piece, there may be signs of the time for us to rethink the number of judges at the Supreme Court in terms of constitutional amendments. The Supreme Court of Kenya has times without count faced the reality of a quorum to sit. This quorum question has arisen not only for basic reasons of life, such as illness and so forth, but for more compelling reasons, which I will shortly focus on.

Dating back to the initial years of the court, it began from the Former Deputy Chief Justice Rawal case on the age of retirement, to the Boss Shollei case and more recently in the Dari Limited case, commonly referred to as ‘Tuju case.’ The surrounding facts of each of those cases are different and I would not enumerate them in detail in this piece. Focusing on the Tuju case to illustrate the point, Dari Limited approached the Supreme Court of Kenya to have its dispute solved. A long winding dispute with over tens of judgments and rulings on different issues, the crux being a loan relationship between the East African Development Bank and Raphael Tuju, via the company, Dari Limited. At the doorsteps of the Apex Court, when the matter came for hearing, the advocates of Dari Limited informed the court that a complaint had been filed against all the 5 judges in the case, the Chief Justice and Justice Lenaola did not sit in the matter and the initial pretrial rulings that triggered the discomfort of the Appellants in the case.  The Appellants in the case, therefore, sought the stay of the proceedings of the matter until the complaints against the entire bench are heard and determined by the JSC. The Court, in rejecting this move, held that upon consideration and reflection, what was before the court was not an application for stay but essentially asking them to step aside from the case.

On reflection, the bench of the 5 judges recused themselves on the basis that the accusations were grave, that is, bias, impropriety and accusations of working towards a predetermined outcome. The court, by itself, notes that it recognises the consequences of such a move and the gravity of the Appeal that was before it. The court argued that even the principle of necessity was not available to the appellants. Previously, in the other cases I earlier referred to, the same court has held that where a recusal application is such that it hits on the quorum of the court, that is, making the court be below 5 judges, the necessity to sit and determine the matter favours more the principles of administration of justice. We saw it in the Boss Shollei case, as some of the members of the bench were members of the JSC that sent Shollei packing. In Dari Limited, the court recused itself in totality.

Up to this point, all can see that the court is struggling with quorum and will even face harder quorum hurdles in future, forbid that it be in critical matters, such as a Presidential election petition. Kenya must never fall for the fear of constitutional reform when the same is merited. On the number of judges at the Apex Court, the time is now. We may have to reflect and have an expanded bench of eleven or thirteen members, whichever number, and further retain the quorum at a number that is arguably safe for any eventuality. This is not to say that the possibility of ever having such an entirely expanded bench recuse itself is out of sight. An expanded number bench spreads the risk of such possibilities. Similarly, the court can on its own create internal divisions; some judges in the expanded bench can solely deal with Article 163(4)(a) Appeals, others with Article 163(4)(b) Appeals. Others can be in the Advisory Opinions section, the Article 168(5) Appeals and other rare jurisdiction areas, such as the presidential petitions and state of emergency jurisdiction under Article 58.

Even the candidates who were grilled on this issue hinted at the necessity of reforms. As the court reflects on the 12 years of service, the nation should reflect on these weighty issues before the country gets itself into a constitutional gridlock beyond it. As it is now, the potential of recusal one day being used for motives beyond the law is not remote. As a country, we have to be proactive and stop the trend of wriggling our way only when a crisis presents itself, as we often do.