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Blow to JSC as President Uhuru Kenyatta rejects Judge Philip Tunoi’s probe

NAIROBI: The President has ignited a conflict with a commission after rejecting recommendations to form a tribunal to investigate a judge.

President Uhuru Kenyatta declined to name a team to probe Supreme Court Judge Philip Tunoi over claims he received a Sh200 million bribe to influence the court’s ruling on a petition challenging the election of Nairobi Governor Evans Kidero.

By rejecting the recommendation by the Judicial Service Commission (JSC), which is chaired by Chief Justice Willy Mutunga and who referred the complaint against the judge to the commission, the President has created a dispute over the constitutional provision on separation of powers.

President Kenyatta argued that the High Court had decided that Justice Tunoi ought to have retired — if he is not a member of the Bench a procedure to remove him wouldn't apply — and his appeal against the decision to retire him at 70 years was yet to be determined.

"At this particular moment in time when the appeal is still pending and where the status of the judge is subject to judicial consideration, implementing the recommendation of the Judicial Service Commission, in line with Article 168 (5), would create a constitutional crisis," Head of Public Service Joseph Kinyua stated in his letter to Dr Mutunga.

"We, therefore, propose that we await the outcome of the judicial process after which we shall process the petition as required by the Constitution and the law," adds the letter dated February 19.

But the action by the President has sparked controversy with the Law Society of Kenya (LSK), which argues that if a tribunal is not established by today, Tunoi would challenge its legality by a technicality if it were formed later. LSK President Eric Mutua cautioned that Uhuru risked impeachment for failing to follow the law.

"If the tribunal is not formed within the 14 days and later is formed and Tunoi is found culpable, he can battle the decision on account that the tribunal was formed way after the deadline stipulated in law. The consequence of such action by the President is that after the lapse of the 14 days, such tribunal may not be formed unless there is a constitutional amendment of Article 168(5) in order to extend the period within which he may act," said Mr Mutua.

"Any tribunal or body constituted after the 14 days period shall be unconstitutional and subject to challenge. Accordingly, irrespective of the decision by the Court of Appeal, Justice Tunoi may never be investigated. It is a clear blow to both the fight against corruption and the quest for a clean judiciary."

But lawyer Peter Wanyama argued that the President rightly stated that he could not appoint a tribunal to investigate a person who is not a judge under the Constitution.

"If the Court of Appeal and the Supreme Court (where he sits) confirm the High Court's retirement decision, Judge Tunoi will not be subjected to a constitutional removal process. At this point, he can only be subjected to criminal proceedings over the bribery allegations," argued Mr Wanyama in a Facebook post.

While he was of the view that the President could still form a tribunal to investigate the judge if the retirement decision went Tunoi's way, the lawyer contended that given the cloud of suspicion, Tunoi should keep off judicial work for now.

"It makes judicial sense for the CJ to ask the judge not to sit for the time being. He should be 'administratively suspended' or asked to take 'some time off,'" he argued.

He added: "But did the Court of Appeal issue an order that allows the judge to remain in office pending his appeal? If the answer is in the affirmative, then the President is wrong. He must appoint a tribunal."

The latest development is a twist to the saga that erupted after former radio journalist Geoffrey Kiplagat swore an affidavit linking the judge to an alleged Sh200 million bribe to influence the Supreme Court's decision to uphold Dr Kidero's election in a petition filed by his challenger Ferdinard Waititu.

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Monday, an application by Mr Waititu (now Kabete MP) seeking a review of the decision to uphold Kidero's election was rejected by the Supreme Court.

"Supreme Court registry refuses to accept Hon Waititu's application to set aside the Kidero judgment. What is this nonsense?" Waititu's lawyer Ahmednasir Abdulahi wrote on his Twitter timeline.

Earlier, State House had blamed JSC's failure to attach documents setting out the basis for seeking the judge to be investigated for its delays to form the tribunal.

The standoff between the President and the CJ is unprecedented, and were the stalemate to escalate it would be awkward considering it touches on the highest court in the land.

JSC forwarded the petition to the President 14 days ago, asking him to form a seven-member tribunal after it found that the judge interacted with the parties in the case and that amounted to misconduct.

In his letter, Mr Kinyua referred to the judge as 'retired', noting that the decision by the High Court that he ought to retire together with Justice David Onyancha still stood.

"Our attention has been drawn to the decision of the five-judge Bench of the High Court in petition 244 of 2014 where the court in paragraph 398 concluded that the petitioners (Justices Phillip Tunoi and David Onyancha), like other judges serving on the effective date, transited into the new Constitution under Section 31 (2) and post-vetting that they serve on the terms hereunder including Article 167 (1), which states that a judge shall retire from office on attaining the age of 70 years," Kinyua told the CJ in his two-page letter.

The senior judge in an interview, had claimed that the allegations were influenced by the succession battle for Mutunga's seat.

In court, Tunoi made an application to remove Justice Milton Makhandia from the seven-judge Bench hearing the case, on account that the Court of Appeal judge frequented Karen Country Club with Attorney General Githu Muigai and the two allegedly discussed the case.

Deputy Chief Justice Kalpana Rawal made similar claims, saying that an undisclosed source intimated to her that Prof Muigai and Justice Makhandia allegedly agreed that the appeal should be dismissed.

The AG responded to the remarks terming them as irresponsible and interestingly also referred to Tunoi and Rawal as 'retired'. Kinyua in his letter said that there would be a crisis if the President took action in regard to the recommendation.

The Chief of Staff said the President was in a split-road situation as the Appellate Court could either dismiss or uphold Tunoi's argument.

"At the particular moment in time when the appeal is still pending and where the status of the judge is subject to judicial consideration, implementing the recommendation of the Judicial Service Commission in line with Article 168 (5) would create a constitutional crisis," said Kinyua.

Article 168 says that, "The President shall, within 14 days after receiving the petition, suspend the judge from office and acting in accordance with the recommendation of the Judicial Service Commission... appoint a tribunal.