President Uhuru Kenyatta has suspended Supreme Court judge Philip Tunoi just a day after he had declined to form a tribunal to probe Sh200 million bribery claims against him.
The President’s U-turn to appoint the seven-member tribunal has now turned the spotlight on his legal advisers.
He named the team on the last day of the 14-day constitutional deadline, citing strict timelines for the setting up of a tribunal for the investigation of a judge.
On Tuesday, the President had said he would only act on the Judicial Service Commission (JSC) recommendation after an appeal that Tunoi has filed to contest a High Court ruling requiring him to retire at 70 years was determined.
But the Law Society of Kenya (LSK) warned that a tribunal formed beyond the statutory 14-day limit was open to challenge on its legality, which would have aborted the investigation into the alleged misconduct by the judge.
Yesterday, the President said he had changed his mind after further consultation although the communication on Tuesday by Head of Civil Service Joseph Kinyua had cited legal provisions to justify his decision to reject the recommendation by JSC chaired by Chief Justice Willy Mutunga.
“After further consultation and review of the relevant provisions of the Constitution and given the strict timelines for the setting up of a tribunal for the investigation of a judge, I have today suspended Tunoi as a judge of the Supreme Court with immediate effect and appointed a tribunal to investigate his conduct,” President Kenyatta said in a statement sent to media houses yesterday.
In a statement by State House Spokesman Manoah Esipisu, the President added: “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 believe my concerns may now be addressed by the tribunal itself, which may independently consider the merit, if any, of such concerns, should it be raised before it.”
The tribunal will be chaired by Judicial and Magistrates Vetting Board Chair Sharad Rao and will have judge Roselyn Korir, Rtd Justice Jonathan Havelock, Judith Guserwa, Abdirashid Abdullahi, George Munji and James Kaberere as members.
But The Standard has learnt of intrigues that might have led to the latest development. The Attorney General’s office is said to have given the initial advice, citing time was running out. “The AG wanted to save the situation,” the source said, adding that the report by JSC was tabled before the President late.
However, after the issue created an uproar, the Solicitor General’s Office stepped in reportedly advising the naming of the tribunal. AG Githu Muigai and Solicitor General Njee Muturi did not respond to inquiries by The Standard about the matter.
The source said the feeling in Government was that the Court of Appeal would eventually kick out Tunoi’s appeal, which would then mean he would not be investigated as a sitting judge. The controversy sparked heated exchange in the National Assembly yesterday, where MPs blamed Prof Muigai and Kinyua for the confusion.
During the afternoon session, Speaker Justin Muturi dismissed a letter signed by Kinyua on behalf of the President as ‘casual’ and not having the force of law. He said the letter, which gave justification for the President’s initial decision not to form the tribunal, cannot be regarded as originating from the Head of State.
“We have not seen anything under the seal and signature of the President. We live in interesting times and have seen all manner of functionaries make casual communication and assume that it is the President speaking,” said the Speaker in reference to Kinyua’s letter.
His comments followed another attempt by Mithika Linturi (Igembe South) to lay blame on AG for allegedly ‘mis-advising the President on the formation of the tribunal. Linturi was joined by Deputy Minority Leader Jakoyo Midiwo, who claimed that Muigai was responsible for the President’s initial position.
Linturi said the decision by the President was based on wrong advice by the AG, who is the chief legal adviser and a member of JSC.
“Let me thank the President. This matter was going to get murkier. We cannot sit here and let them think that Parliament, the Law Society of Kenya and the Judiciary are stupid,” Midiwo said.
The comments against the AG were, however, met with resistance from two other MPs who said the AG’s initial advice on the matter was ignored.
Samuel Chepkonga (Tiaty) and Manson Nyamweya (South Mugirango) argued that the AG should not be blamed for the confusion that led to the formation of the tribunal.
Meanwhile, LSK Chair Eric Mutua yesterday praised the move by the President, noting it was the only way to have resolved the issue.
“I thank the President for forming a tribunal. He had to follow the Constitution,” Mutua said.
At the same time, the Supreme Court has finally allowed Kabete MP Ferdinand Waititu to argue for a review of his case against Kidero. Justice Jackton Ojwang heard the application filed under a certificate of urgency.
In the case, Waititu through his lawyers Harrison Kinyanjui, Paul Muite and Ahmednasir Abdullahi had filed his papers before the Supreme Court registry in a bid to revert the earlier order that saw him lose the gubernatorial seat.