President Uhuru Kenyatta’s rejection of a recommendation to appoint a tribunal to investigate Supreme Court judge Philip Tunoi has triggered outrage, with lawyers warning it could lead to his impeachment.
By refusing to appoint a tribunal as recommended by the Judicial Service Commission, the President was subverting the Constitution and opening himself up to possible impeachment by MPs, said the Law Society of Kenya on Monday.
“This is another instance where the President has violated the Constitution. It is an act of subversion of the Constitution,” the chairman, Mr Eric Mutua, said in a statement.
“We wish to remind the President of Article 145(1) of the Constitution that says he is subject to the Constitution and that he may be impeached for such a violation,” he added.
In a February 19 letter to the Chief Justice and chairman of the JSC, Dr Willy Mutunga, the President said suspension would prompt a constitutional crisis and advised that they await the outcome of an appeal filed by the judge in the High Court, challenging a decision to retire him after attaining 70 years of age.
“Our attention has been drawn to the decision of the High Court, which concluded that the petitioners (Justices Philip Tunoi and David Onyancha), like other judges serving on the effective date, transited into the new Constitution and post-vetting, that they serve on the terms thereunder, including article 167(1) which states that a judge shall retire from office on attaining the age of 70 years. We further note that an appeal against the decision of the High Court has been instituted and is pending before the Court of Appeal and that the court has yet to pronounce itself on the matter, consequently, the decision of the High Court stands,” says Mr Kenyatta’s letter.
“Article 168(5) requires the President to suspend the judge from office and thereafter appoint a Tribunal. However, Justice Philip Tunoi has already been declared by a court of competent jurisdiction to have “retired from office on attaining the age of 70 years” and as the Court of Appeal is now seized of, and is due to make a determination on this same matter, it may rule either in favour of, or overturn the decision of the High Court,” explains the President.
“At this moment when the Appeal is still pending and where the status of the judge is subject to judicial consideration, implementing the recommendation of the JSC would create a constitutional crisis. We, therefore, propose that we await the outcome of the judicial process, after which we will process the petition as required by the Constitution,” he concludes.
LSK expressed fears that Justice Tunoi would go scot-free whether the Court of Appeal upholds or overturns the High Court ruling since the 14-day window within which to form a tribunal would have lapsed.
The window lapses Tuesday and it is highly unlikely that the President will change his mind before close of business Tuesday since he is out of the country.
As soon as the letter went public, lawyers took to Twitter to express their reservations about the decision.
A special committee formed by the JSC and chaired by Public Service Commission Chairperson Margaret Kobia ruled that there were sufficient grounds for the bribery claims to be investigated further.
Meanwhile, Kabete MP Ferdinand Waititu has filed a fresh case at the Supreme Court for a review of the judgment of his election petition against Dr Kidero.
The MP argued that the bribery allegations had made him believe he was not accorded justice at the Supreme Court.