Jonathan Havelock has been appointed chairman of a tribunal set up to probe Supreme Court judge Philip Tunoi over Sh200 million bribery allegations. Havelock, a retired High Court judge, replaces Sharad Rao, who had earlier been appointed to head the team by President Uhuru Kenyatta.
This latest move once again casts the spotlight on the President and his advisers on legal matters. When the Judicial Service Commission recommended to President Kenyatta to form a tribunal to investigate Justice Tunoi, he was reluctant. His first statement was that there would be no tribunal until an appeal by the judge on his retirement age was determined.
"At this particular moment in time when the appeal is still pending and where the status of the judge is subject to judicial consideration, implementing the recommendation of the JSC, in line with article 168 (5), would create a constitutional crisis," Head of Public Service Joseph Kinyua stated in a letter to Chief Justice Willy Mutunga.
The reactions were fast and furious, with Law Society of Kenya (LSK) arguing if a tribunal was not established with 14 days, Tunoi would challenge its legality on a technicality. The then LSK President Eric Mutua said President Kenyatta risked impeachment for failing to follow the law. But the President, after 'further consultations', formed a seven-member team headed by Mr Rao, the Judges and Magistrates Vetting Board chairman.
But lawyers faulted the President's choice, arguing that Rao, 83, has never been a judge of a superior court. Lawyers Edwin Sifuna and Boniface Muumbi, in separate interviews, pointed out that Rao could only be a member and not the chair. They said Article 168 (5) dictates the tribunal should consist of a chairperson and three other members from among persons who hold or have held office as judges of a superior court.
