, NAIROBI, Kenya, Feb 23 – President Uhuru Kenyatta has reversed his position on the constitution of a tribunal to investigate whether Supreme Court Justice Philip Tunoi remains fit to hold office and tasked a seven-member team with the job.
President Kenyatta has suspended Justice Tunoi and appointed Judges and Magistrates Vetting Board Chairman Sharad Rao to head the tribunal also composed of Justice Roselyne Korir, Retired Justice Jonathan Bowen Havelock, Judith Abrahams Guserwa, James Kaberere Gacoka, Abdirashid Abdullahi Hussein and George Munji Wakukha.
- Justice Tunoi was accused of receiving bribe from Nairobi Governor Evans Kidero in an election petition filed by Ferdinard Waititu
- President Kenyatta had initially declined to appoint the tribunal to wait outcome of a case filed by Justice Tunoi
- Waititu has filed fresh application before Supreme Court seeking for review of its decision on the petition.
In a statement, President Kenyatta said he decided against putting off its formation “after further consultation.”
On Monday, State House made public a letter from President Kenyatta’s Chief of Staff Joseph Kinyua to Chief Justice Willy Mutunga which indicated that there would be no tribunal formed before the Court of Appeal rendered its decision on Tunoi’s retirement.
Kinyua’s argument was that should the Court of Appeal, like the High Court, find that Tunoi should have retired at 70, an examination of his suitability as a judge would be futile.
“Justice Tunoi has already been declared by a court of competent jurisdiction to have ‘retired from office on attaining the age of 70 years’,” he stated.
But following an almost unanimous agreement across the board of the legal fraternity that such action would be unconstitutional, President Kenyatta changed his mind.
“After further consultation and review of the relevant provisions of the Constitution, I have made this decision, despite my concerns regarding the pending matters before the Court of Appeal, as to the correct age of retirement for Judges who served under the previous constitutional dispensation.”
“I reiterate my commitment and fidelity to the Constitution of Kenya, and confirm that I will continue to uphold and defend it,” President Kenyatta explained.
The Law Society of Kenya, Transparency International Kenya and a cross-section of lawyers came out strongly against the suggestion that the 14-day deadline set out in the Constitution would not be met.
Article 168(5) of the Constitution on the procedure for the removal of a judge, gives the head of state a fortnight within which to constitute a tribunal to vet a judge, on the recommendation of the Judicial Service Commission.
And by failing to meet said deadline, the LSK, TI-Kenya and others, cautioned that President Kenyatta would be contravening the very Constitution he swore to uphold when he took up office; an impeachable offence.
“The language of Article 168(5) is mandatory. ‘Shall’.” Constitutional Lawyer Betty Murungi told Capital FM News.