Dithers, twists and Uhuru’s poisoned chalice that is the appointment of Tunoi tribunal

A wit once said of some artful lawyers that they could trace their ancestry back to the Garden of Eden.

Those, in short, were the type of snakes they were.

Watching the President’s legal advisors zigzag, like punch-drunk boxers, from one piece of cynical advice to another over the Tunoi Tribunal, one fears that it is Attorney-General Githu Muigai and his team of lawyers that the wit had in mind.

The impression outsiders get from watching the bad decisions that the President regularly makes in matters of law is that his legal advisers are riven by competitive displays of loyalty and hobbled by fratricidal jealousy over access and influence.

The President seems, in turn, to be torn between an all too human wish to work with lawyers he knows and trusts irrespective of how flawed their advice is and a hard-nosed executive need for correct but disagreeable advice from people he neither knows nor actually trusts.

Recent blunders suggest that he first takes the advice of those he knows and trusts until things go wrong. And then he makes the difficult decisions.

TUNOI TRIBUNAL

That would explain how the appointment of the Tunoi Tribunal so easily almost became a poisoned chalice for the President.

Someone must have warned the President that the tribunal hearings could be an embarrassing snafu.

Justice Tunoi could decide to tell all, if there is an all to tell.

Did the Supreme Court bend over backwards in the Raila Odinga petition in 2013?

If this is what was going on behind the scenes, then the milksop of a letter by Joseph Kinyua to Chief Justice Willy Mutunga offering the most vapid justification for presidential inaction ever written begins to make sense.

It was a letter so bad that the country’s shocked response actually shocked the President too.

Barely 24 hours later he appointed the very tribunal the letter had said he would not.

But by being so easily flappable, the President has played into his critics’ hands.

First, there is the presidential indignity of such an unseemly retreat on so critical a constitutional issue.

Secondly, the go-start-go decision, coming so soon after fresh corruption allegations against Anne Waiguru, his former devolution secretary, suggested a president averse to fighting graft, an issue he has forcefully spoken out about and staked his reputation on.

KINYUA LETTER

Once again, the spotlight should fall on his silver-tongued Attorney-General: What advice did he actually give the President before Kinyua sent his addled letter to the CJ?

Remember that the AG sat in the Judicial Service Commission committee that heard evidence of Tunoi’s misconduct.

He was part of the team that recommended that a tribunal be appointed.

As the titular head of the bar, one must ask what legal advice he gave the JSC.

And then as principal legal adviser to the government, what did he actually tell the President?

Most troubling is the fact that on the eve of Kinyua’s letter, Muigai was on TV, serving up the usual verbal candy-floss and echoing arguments that the letter would make the next day.

Was the TV appearance what it now seems: a crafty sales pitch to soften public opinion ahead of next day’s “epistle to Willy?”

It is important to caption what is at stake here. The President’s advisers made him look weak and indecisive.

You need not be a lawyer to see the absurd legal position he has been left in.

Kinyua’s letter - read the AG - argued that the High Court had already ruled that Justice Tunoi was now retired.

Since Tunoi had appealed that decision, the Court of Appeal could affirm or overrule the High Court.

That meant, the letter said, the issue was “pending” and that the status of the Justice Tunoi was still “subject to judicial consideration”.

USURPING TRIBUNAL

Given that fact, the letter concluded disingenuously, “implementing the recommendation of the Judicial Service Commission, in line with Art. 168(5) would create a constitutional crisis.” Pray, what crisis exactly?

This surely was executive over-reach. The President’s mandatory duty is to appoint a tribunal if the JSC recommends one.

He cannot make factual findings that the tribunal has nothing to look into because Tunoi’s status as a judge is uncertain.

By reaching a status conclusion the President was, in effect, usurping the function of the tribunal.

Whether Tunoi is a judge for the purpose of its disciplinary hearing is a jurisdiction question for the tribunal, not the President.

The President’s functions are purely formal, head of state duties.

Related to that, the President cannot legally refuse to exercise a mandatory power - as he had at first - on the ground that the person involved, Tunoi in this case, has filed a private suit.

PUBLIC INTEREST MUST PREVAIL

In such a case, the public interest must prevail, even if the case has some constitutional ramifications.

It is partly why criminal cases take precedence over civil cases with the same subject matter.

In such cases, the civil claim is deferred until the criminal case is complete.

The obvious but not the only reason for this is that facts proved in criminal cases need not be proved in related civil claims.

A collateral but very important policy argument - which is relevant here - is that a crime is a public wrong and the public interest should be vindicated before the private interest.

Analogously, the President must not recoil from mandatory judicial duties on the rickety theory that a private suit is pending.

Certainly not in a case such as this, where the misconduct alleged is so egregious that it threatens the integrity of the very judiciary before which the private suit is pending.

Finally, the President should censure his lawyers for failing to legally fireproof the tribunal.

TRIBUNAL MEMBERS

Already, some lawyers are arguing that the tribunal may be illegally constituted.

The issue is how to interpret article 168(5) of the Constitution.

In sub-article (5)(b), a tribunal such as this consists of seven members with three different sets of qualifications.

The first four members, the chair and the first three are lawyers who must “hold or have held the office of “judge of a superior court” or “are qualified to be appointed as such”.

The fifth member has to be an advocate of 15 years standing.

The last two must be people “with experience in public affairs.” The issue is what to make of the clause “qualified to be appointed judge of a superior court?”

SHARAD RAO

At stake are the qualifications of Mr Sharad Rao.

Is Mr Rao, who is above 70 and has never been a judge “a person qualified to be appointed a judge of a superior court?”

Some say he is not qualified. Others say that age is not one of the qualifications for being a judge.

Which means that his age should not bar his appointment to the tribunal.

Yet that sounds implausible: age is not a qualification but it is a disqualification.

An otherwise qualified 75-year-old lawyer is certainly not eligible to be judge. Is he eligible to serve in an article 168 tribunal?

The problem lies in the fact that the article 168(5) appears to lay down two different qualifications for the first category of tribunal members.

AGE FACTOR

In the first part, it seems that a former judge - even if she is above 70 - may be appointed.

But then it also seems that a lawyer of the same age could not be appointed, simply because being over 70, he would be disqualified from being a “judge of a superior court”.

There are two ways to remove this ambiguity. The first is to read the article as laying down the same age rule for every member of the tribunal who is a lawyer.

Read this way, article bars the President from appointing a lawyer or former judge who is above 70.

On that reading, even a category two member, an advocate of 15 years standing, has to be below 70.

This removes the absurdity whereby category one members, the chairperson and the first three members, must be below 70 but the lawyer under the second category could be any age whatsoever.

The second interpretation, and the easiest way out, is to argue that article 168 sets out merely technical qualifications.

Age is irrelevant. But why would the drafters assume that there is something about the age 70 that disqualifies one from being a judge but that somehow that “something” does not disqualify a member of the tribunal mandated to remove the judge?

Big deal one might counter: Board members can fire a CEO even if none of them is qualified to be CEO.

The problem for now, though, is not what the correct interpretation of article 168 is.

It is rather that the President should not have made appointments that allow an ambiguity this obvious to create a tendentious basis to challenge the tribunal’s composition or its final decision.

As a friend said of this juridical danse macabre the President’s advisers “love banana skins so much, they will swim crocodile-infested rivers to skid on them.”

President Kenyatta must surely now stop these adrenaline junkies, their addiction to risk is endangering him too.

Wachira Maina is a constitutional lawyer. [email protected]