Justice Philip Tunoi’s bribe saga exposes Uhuru Kenyatta’s advisers, again

NAIROBI: The bungled process of appointing a tribunal to probe Supreme Court Judge Philip Tunoi has, for the umpteenth time, exposed the dysfunction of President Uhuru Kenyatta’s advisory system.

Observers, analysts and insiders question the motives and intrigues behind the events of Monday and Tuesday when two contradicting communications emanated from the country’s highest office on a serious national matter.

On Monday, a letter written by Joseph Kinyua, the Chief of Staff at the Office of the President, and dated February 19 emerged turning down the Judicial Service Commission’s petition to the President to set up a tribunal to probe Justice Tunoi.

In the letter where Kinyua spoke of “we” instead of the “president”, a court case was cited and a proposal made to await its conclusion: “We therefore propose that we await the outcome of judicial process after which we shall process the petition as required by the Constitution and the law.”

A day later, the President somersaulted and suspended Justice Tunoi, citing “further consultations”. He also appointed a tribunal to probe the judge. But fresh concerns have emerged on the qualification and suitability of proposed chair Sharad Rao and other members of the tribunal.

“Something stinks to the high heavens. Clearly someone wanted to protect Tunoi. The question is why? The attempts to cover everything up suggest the allegations against him may have merit and could draw in other regime figures,” says law professor Makau Mutua.

Investigations by The Standard on Saturday revealed a fractured presidential bureaucracy, sometimes working at cross purposes, a laid-back President and infiltration of private interests in key decision making. In the Tunoi matter for instance, Attorney General Githu Muigai is said to have issued the legal opinion which informed Kinyua’s letter turning down the JSC petition. Githu sits in the same JSC which unanimously recommended the tribunal option.

Besides, the AG is reportedly interested in one of the Supreme Court positions up for grabs in coming months. Deputy Chief Justice Kalpana Rawal has accused him of attempting to “fix” her retirement case.

When The Standard on Saturday asked the AG whether he was involved in advising the president to turn back and appoint a tribunal, he curtly responded: “No comment.”

On the other side, Githu’s powerful understudy, Solicitor General Njee Muturi, and President Kenyatta’s Constitutional and Legal Affairs advisor Abdikadir Mohamed were opposed to the AG’s opinion.

“To this camp, the matter was straight-forward; form a tribunal. And then the rest of the shenanigans can be sorted within that framework. The questions of age, suitability, court processes could be determined once you have a tribunal running,” a senior government official said.

Njee and Abdikadir’s group was further reinforced by the opinion of the Speaker of the National Assembly Justin Muturi. When the matter came up before the plenary during the week, Muturi set aside protocol to ridicule the decision.

“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,” Muturi said of Kinyua’s letter.

The matter had assumed a familiar narrative of a divide that pits the two Muturi’s against the AG and Kinyua. Lawyer Harun Ndubi says Kinyua’s initial letter was a “statement of impunity” and “fraudulent misrepresentation of the law.”

“In recognition that the President acts in his capacity as Head of State in a Constitutionally-mandated matter like this, with strict Constitutional deadlines, the President should only take the professional advice of the AG and not any other person.”

“It therefore begs the question whether the AG sat in the JSC and made the recommendation only to offer a contrary opinion to the President or the President ignored to seek the advice of the AG and instead listened to his friends,” Ndubi says.

“Previously, there were reports quoting the President’s spokesperson Manoah Esipisu denying, on no less than two occasions, that they had received the recommendation from the JSC. However, the letter communicating the President’s refusal to appoint a tribunal acknowledges that the letter forwarding the JSC recommendation was dated February 8,” Ndubi says.

The lawyer says it is “inescapable from any half-witted mind that there was a deliberate plan to sabotage the Constitution and the rule of law.”

His view is given credence by past review of similar decisions which the Office of the President has had to make under similar circumstances. President Kibaki took seven days to appoint the Baraza tribunal in 2010. In a somewhat similar petition arising from a November 7, 2013 National Assembly resolution, Uhuru suspended six JSC members and appointed a tribunal to probe them.

“All that is water under the bridge. The President has obeyed the law and there is a tribunal in place. This is what matters at the moment,” Abdikadir said.