The best thing Judge Philip Tunoi should do is withdraw case and quit

NAIROBI: The legal standoff between President Uhuru Kenyatta and the Judicial Service Commission (JSC) over the investigation of judge Philip Tunoi brings to the fore a crisis that was never contemplated by the makers of the 2010 Constitution.

Whereas the procedure for investigating a judge who is legally in office is clear under Article 168 of the Constitution, this is not the case where the legality of the judge in office is questionable.

Apparently, while the refusal by the President to set up a tribunal to investigate Justice Tunoi may appear to give him relief, ironically, it’s a message by the Head of State and the executive that the judge is in office illegally. The President states that he could not set up the tribunal as the judge has been declared to be illegally in office by the High Court.

Notably however, that High Court order has been suspended by the Court of Appeal, giving the judge legal mandate to continue holding office pending the determination of his appeal. The Judiciary is yet to determine conclusively whether the judge should have already retired at the age of 70 years.

That notwithstanding, the Constitution does not create room for the President to question or sustain debate on the form of the petition presented to him by the JSC.

Article 168 (4) states that JSC shall consider the petition and, if it is satisfied that the petition discloses a ground for removal, send the petition to the President. Article 168(5) adds 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 JSC, set up the tribunal.

It’s different however, when a court has already decided that one is no longer a judge. In that case, a judicial tribunal cannot be set up to investigate him and he is to be regarded like any other civilian.

If the Court of Appeal was to finally decide that the judge should have retired at 70, all the work of the tribunal would be futile as a tribunal is only set to investigate judges who are legally in office.

The allegations against Tunoi would then have to be referred to other agencies such as the EACC or the CID and if found culpable, he would face charges of abuse of office.

Indeed the tribunal is not set to investigate the criminality of the allegations against him but to determine if he ought to continue holding office as a judge.

Even if the tribunal were to establish that he was actually bribed, it would only recommend his removal from the bench and nothing more. It would be upon other agencies including the office of the Director of Public Prosecutions to take up the matter from there.

The matter is compounded by the fact that JSC has already decided that Tunoi should not be in office. In fact it’s upon such a notification by the JSC that the judge moved to the High Court to challenge the constitutionality of the term limit.

It would then be paradoxical for the same JSC to have entertained a petition against the same judge. That would only mean that JSC acknowledges that he is legally in office. However, JSC entertained the petition and proceeded to set the committee to investigate the judge on the ground that the Court of Appeal has already suspended an order requiring him to retire. This case is further complicated by the fact that the Attorney General, who advised the President not to set up the tribunal, is also a member of the JSC and in fact a party in the suit filed by Tunoi.

And should the matter proceed to the Supreme Court, it will encounter more hitches as Deputy CJ Kalpana Rawal would have to be excluded from the proceedings.

As it were, no action can be sustained against the President for failing to set up the tribunal as that would result in a game of musical chairs. The way forward would be for Tunoi to break the stalemate by withdrawing his case and retiring so that the question of setting up a tribunal does not arise any more.