President Uhuru Kenyatta avoided a constitutional crisis by appointing a tribunal to investigate corruption claims levelled against Supreme Court Judge Philip Tunoi.
Earlier, the President had rejected the petition by the Judicial Service Commission (JSC), which had asked him to set up the tribunal to determine the truth of allegations that the judge received a Sh200 million bribe to influence a ruling in an election petition filed by Kabete MP Ferdinand Waititu against Nairobi Governor Evans Kidero.
The argument advanced for this was that the tribunal ought to be held off until the case filed by Justice Tunoi over his retirement was concluded.
This ignited a national uproar, with the Law Society of Kenya warning that President Kenyatta risked impeachment if he failed to appoint the tribunal within the stipulated 14 days.
Questions are being asked why the President was given wrong advice that risked creating a constitutional crisis.
The Constitution expressly stipulates the President’s obligation in regard to removal of judges from office.
Article 168 (5) ties the President’s hands: He has 14 days to suspend a judge and set up a tribunal to investigate him/her once he receives a petition from the JSC to that effect.
Therefore, it was ridiculous for any adviser to craft a diversionary process to circumvent the tribunal route, which is coded in law.
This undermines the Constitution and puts to test the President’s allegiance to the rule of law.
Advisers have an obligation to guide the President on the law and avoid intrigues that diminish the stature of the office.
Another critical issue is the composition of the tribunal. As spelt out in the Constitution, the tribunal should comprise senior members of the bench, an advocate, and two members of the public with a proven track record in public affairs.
Doubts have been expressed about the competence and independence of some of the members of the tribunal.
That does not inspire confidence. Since such a tribunal is entrusted with an enormous and delicate task — determining the veracity of corruption claims against a judge of the highest court in the land — its members must be beyond reproach.
In the circumstances, the tribunal must conduct its affairs in public, professionally interrogate all the evidence brought before it, and ultimately prepare a report that not only resolves the matter, but also restores the dignity of the Judiciary.