KENYA: The older judges get the wiser they become

. NAIROBI, Kenya (Daily Nation), September 19, 2008: By Peter Mwaura Should the Kenyan judges’ mandatory retirement age be lowered? When is a judge too old to perform? Do judges have a shelf life? Justice minister Martha Karua seems to think so. “The retirement should not be 74 years,” she said in Meru on Sunday. “In some cases, according to me,” she added, “even at 70 years, senility might have set in.” So she wants the retirement age reviewed downwards. Section 62 (1) of the Constitution states that a judge of the High Court shall vacate office when he or she attains such age as may be prescribed by Parliament. Parliament has prescribed 74, which is what the minister wants changed. At the meeting convened by the Mt Kenya Law Society of Kenya branch, she said some judges were unable to make logical decisions and perform their duties properly because they were “over the hill” even before they have attained the prescribed retirement age. We can only presume Ms Karua knows judges who have become worn out before reaching the mandatory retirement age. In that case, she should call for their removal as provided for in the Constitution. Section 62 (3) of the Constitution states that a High Court judge may be removed from office for inability to perform the functions of his office, whether arising from physical or mental infirmity or from any other cause. Otherwise, to call for the lowering of the retirement age is to engage in age stereotyping. People, including judges, age differently. We cannot attribute senility to all judges as a group. Each should be treated as a unique individual rather than as a stereotypical member of the group. A judge who is 70, 74 or even 84 could be a fabulous adjudicator. The retirement age of 74 is arbitrary. Why not 75, for instance? To retire judges even at 74 can be, in some cases a waste of knowledge and ability. All over the world, there are many examples of judges who have excelled in their twilight hours. Judging is not like policing, soldiering or even nursing and doctoring. There is clear evidence that in general, the older one gets the better one becomes. Some of the world’s most famous judges did their most brilliant work in their advanced years. Lord Denning, the most influential British judge in the 20th century, retired at 83 in 1982. He was famous for his witty, no-nonsense judgments, and is one of the world’s most quoted Court of Appeal judges. He was an innovator in legal reasoning and made an enormous contribution to the advancement of law. For law students he is a legend. Of old age he said: “You can do good work after 75. I think I gave some of my judgments of greatest value after 75.” Owen Dixon, who is widely regarded as Australia’s greatest judge and lawyer ever, was the country’s chief justice until he retired in 1964 aged 78. He was considered by many people as the greatest judicial lawyer in the English-speaking world. During his time on the bench, he wrote many judgments that are still regarded as classic statements of the common law. In the United States, Thurgood Marshall was 67 when President Lyndon Johnson appointed him to the Supreme Court. He served in the highest court in the US for 25 years as the first African-American judge of the Supreme Court until he retired in 1991 at 83. Although he is best remembered for his jurisprudence in civil rights and criminal procedure, Marshall made significant contributions to other areas of the law. He also helped to write Kenya’s Constitution, in particular the Bill of Rights, in 1960. The Parliament-mandated retirement of judges on the basis of age is a form of discrimination. Each judge is a valuable member of the Judiciary, not a statistic. Mandatory retirement means that our wisest, most experienced, most reliable and probably most productive judges will be taken out of the system because of age. Judges, unlike people in other areas of work, tend to reach their performance peak relatively late in life. The US recognises this fact. Retired judges become senior judges. They handle selected cases while in retirement on a part-time basis. Age should not be the criterion for leaving the Judiciary. Performance should be. Copyright Nation Media Group Limited