The journey to tribunal as embattled Justice Tunoi fights Sh200 million bribery allegation

President Uhuru Kenyatta has 14 days to suspend Supreme Court Judge Philip Tunoi and appoint a tribunal to probe him.

Article 168 of the Constitution does not give the President a choice in the process of removing judges as it only accords him instructions and timelines.

On Friday, the Judicial Service Commission announced that it was satisfied that the petition by Geoffrey Kiplagat discloses the ground of gross misconduct and misbehavior on the part of the Judge.

Article 168(1), (e) of the Constitution names “gross misconduct or misbehavior” as one of the grounds for removing a judge.

Former Deputy Chief Justice Nancy Baraza was removed from the bench on similar ground when she was involved in a gun incident with a security guard at a shopping mall in early 2012. “The remuneration and benefits payable to a judge who is suspended from office under shall be adjusted to one half until such time as the judge is removed from, or reinstated in, office,” Article 168(6) of the constitution states.

The tribunal to be appointed by the President shall consist of four members who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such. They should not have served in the JSC in the last three years.

Other members include an advocate of 15 years standing and two other persons with experience in public affairs.

The Constitution requires the tribunal to “inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.”

Again, the law affords the President no choice on the matter. Clause 9 of Article 168 restates this finality: “President shall act in accordance with the recommendations made by the tribunal.”

However, the law provides for an appeal by a judge aggrieved by a finding of the tribunal within ten days of pronouncement of the decision. It is only after the expiry of those 10 days or exhaustion of appeal when the President can implement the recommendations of the tribunal.

According the second schedule of the Judicial Service Act which guides the process of a tribunal to remove a judge, Tunoi must be served a hearing notice of 14 days. He must also be served with list of allegations, summary of evidence and document containing allegations 14 days before the hearing. The hearings will be private unless the judge opts to have them in public. Justice Tunoi has the right to be present during all the proceedings related to him and can cross examine witnesses during the hearing.

“A judge whose conduct is the subject of the investigation shall be entitled to call evidence to rebut allegations made against them. The judge may elect not to attend in person or lawyer or at all,” the Act says.

The law requires the tribunal to issue its decision in writing.

The decision must contain a coincise statement of the investigation, points for determination and reasons for the decision. It must be delivered in public and thereafter published in the Gazette.