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President Uhuru Kenyatta’s refusal to form tribunal to probe judge an act of impunity

By Lempaa Suyianka | February 23rd 2016

NAIROBI: The decision by President Uhuru Kenyatta not to constitute a tribunal to investigate the conduct of the Supreme Court Judge Philip Tunoi is inconsistent with the supreme law. 

Article 168 of the Constitution sets out not only the reasons, but also the procedure of removing a judge from office.

The procedure of removing a High Court judge, Court of Appeal judge and a Supreme Court judge is the same.

It is unequivocal and the role of the Judicial Service Commission (JSC) and that of the President, in line with the doctrine of separation of powers, is well circumscribed.

There are two ways of removing a judge from office.

One is by an individual presenting a petition to the JSC while the second one is where the commission, acting on its own motion, can commence the petition.

The JSC must by its mandate, consider the petition and if it is satisfied that a petition discloses a ground for removal, send the petition to the President who is compelled by law to act within 14 days to suspend the judge and appoint a tribunal.

While the Constitution is unequivocal, it obliges any State actor under the National Values as set out in Article 10, to act with fidelity.

The Constitution does not leave room for speculation or second guessing its spirit.

The President’s reasoning not to form a tribunal on an account of a pending case in the Court of Appeal is circumlocution, which is an affront on the Constitution.

It is also to clear dereliction of duty by the Head of State.

There is no nexus between the pending case and the allegation of bribery facing Justice Tunoi.

The Constitution does not require the President to go into the merit and demerits of the petition and recommendation by the JSC.

By attempting to do so, the President is clearly usurping the powers of the JSC.

The role of the President in the appointment or removal of a judge is purely ceremonial.

This is because the President performs this duty as the Head of State and not Head of the Government.

The justification by the President not to constitute a tribunal on account of the High Court decision does not hold any water since the same orders of the court were suspended and the judge is still in office.

Technically speaking, the President overturned the decision suspending the same judgment.

The President has unconstitutionally given the judge in question immunity from suspension that comes with the formation of a tribunal.

That clearly creates a constitutional crisis as he has failed to protect the very Constitution that he was sworn in to protect.

The refusal is also an act of impunity from the head of the State.

The action also amounts to a gross violation of the Constitution and is fertile ground for a petition for impeachment.

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