, NAIROBI, Kenya, Mar 3 – Two activists on Thursday moved to court to block operations of the tribunal established to probe Supreme Court Judge Philip Tunoi.
Okiya Omtatah and Nyakina Giseb have asked the court under a certificate of urgency to halt the tribunal’s operations and declare Sharad Rao unfit to head it.
“Pending the inter-parties hearing and determination of this application the honourable court be pleased to issue temporary orders of injunction suspending the operations of the tribunal appointed to investigate the conduct of Justice Philip Kiptoo Tunoi, Judge of the Supreme Court of Kenya,” they state in the petition.
President Uhuru Kenyatta, Attorney General Githu Muigai and Rao are named respondents in the suit.
The activists argue that Rao’s appointment contravened the Constitution which dictates that a tribunal of such should consist of members who served as judges or were qualified to serve as judges in a superior court.
They argued that Rao had never served as a judge in a superior court and was furthermore not qualified to serve as one.
“The 3rd respondent is not a judge of a superior court. The 3rd respondent has never been a judge of a superior court. The 3rd respondent is not qualified to be appointed a judge of a superior court.”
They blame the President and the Attorney General for appointing and swearing-in Rao yet they clearly knew he was not qualified based on his age which is above 70.
“The 1st and 2nd respondents, by appointing the 3rd respondent who is older than the cut off age for appointing judges, and by his accepting the appointment knowing very well that he is not qualified to be so appointed, the respondents violated Article 168(5)(b)(i) which declares that the tribunal shall consist of a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such,” they explained.
Omtatah and Gisebe asked the court to annul Rao’s appointment as the chair in consideration that it contravened the requirements articulated in the country’s Constitution.
“The appointment is invalid, null and void ab initio for contradicting the Constitution,” they argue.
The petition came only a day after Rao and five other members of the tribunal – Justice Roselyn Korir, Judith Guserwa, James Gacoka, Abdirashid Hussein and George Wakukha were sworn-in by Chief Justice Willy Mutunga and Solicitor General Njee Muturi.
Swearing in of the seventh member of the team, Jonathan Bowen Havelock was still unclear as he had been expected to be sworn-in on Thursday.