, NAIROBI, Kenya, Feb 22 – A number of lawyers have separately but in unison with the Law Society of Kenya, faulted President Uhuru Kenyatta’s decision to put off the formation of a tribunal to investigate Supreme Court Justice Philip Tunoi until the Court of Appeal renders its decision on his retirement.
The lawyers who include LSK President Eric Mutua and Betty Murungi told Capital FM News that the wording of the law on the formation of a tribunal was clear and does not give President Kenyatta the luxury of interpretation.
“The language of Article 168(5) is mandatory. ‘Shall’.” Murungi said.
Former Judicial Service Commissioner Ahmednasir Abdullahi also weighed in through his Twitter account and like Murungi and Mutua, was of the opinion that the Head of State had been misled by the Attorney General.
“@UKenyatta your excellency the Constitution is too simple and clear. You can’t ignore or obey as u wish. Shocking,” he tweeted.
Law Professor Makau Mutua tweeted: “Art 168 (5) of the Constitution says Kenyatta SHALL appoint Tunoi tribunal. He can’t reject JSC recommendation.”
The President’s advisors have however countered that the provision applies to sitting judges and Tunoi in their opinion, should be retired.
“Justice Tunoi has already been declared by a court of competent jurisdiction to have ‘retired from office on attaining the age of 70 years,” President Kenyatta’s Chief of Staff Joseph Kinyua said in a letter to Chief Justice Mutunga informing him of their decision.
An argument which Murungi took issue with on account of an agreement between the JSC and Tunoi that he would not be retired pending the determination of his appeal against retirement at 70 and not at 74, which he argues was the retirement age when he was appointed to the bench.
“Tunoi is working,” Murungi said.
But President Kenyatta’s legal advisors argue that the agreement, “only related to use of his office and designated car.”
It’s worth noting however, that a similar agreement was reached in Deputy Chief Justice Kalpana Rawal’s case and she remains on the bench.
Kinyua has argued that appointing a tribunal to investigate Tunoi following the High Court finding that he should have retired at 70 would create a “constitutional crisis.”
A position the LSK disagrees with and counters that it is President Kenyatta who would create a constitutional crisis should he fail to empanel a tribunal on Tunoi by Tuesday.
“After the lapse of 14 days tomorrow, such a tribunal may not be formed. Any tribunal or body constituted after the 14 days period shall be unconstitutional and subject to challenge.”
Abdullahi put it this way: “A judge is alleged to have received with $2 m bribe (sic). JSC petitions president to appoint a tribunal. HE Uhuru refuses. Grants him immunity.”
The LSK has pushed the argument further and said that President Kenyatta’s failure to constitute the tribunal by Tuesday would qualify as grounds for his own removal.
The JSC on February 9 recommended to President Kenyatta the formation of a tribunal to investigate allegations that Tunoi took a Sh200 million bribe from Nairobi Governor Evans Kidero for a favourable election petition verdict.
It made the recommendation after establishing that there was inappropriate contact between Tunoi and Kidero’s agents when the matter was before the Supreme Court.
“A prima facie case of gross misconduct and misbehaviour has been disclosed against Justice Tunoi,” Mutunga, the JSC Chairman, made public on February 4.