Justice Phillip Tunoi’s tribunal issue grossly mishandled

NAIROBI: The straightforward matter of appointing a tribunal to investigate the conduct of Justice Phillip Tunoi has been astonishingly converted into a tragi-comedy by Jubilee’s incompetence.
It is evident that State House operatives mishandled the matter. Clear and unequivocal constitutional provisions apparently were not adhered to. What surely is unclear about a provision such as article 168 of the Constitution that explicitly states what must be done and by whom and when?
It states in the most unambiguous language that “The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission....in the case of a judge other than the Chief Justice, appoint a tribunal consisting of...” (Article 168 subsection 5) This is the sort of provision that leaves absolutely no wriggle room whatsoever. It must be done and done by the President.

Obscure operatives at State House (for the record, the Constitution does not provide for an institution known as ‘State House’) however saw things differently and raised entirely tangential issues completely irrelevant to the matter. Apart from the grave matter of usurping the President’s role, they set it upon themselves to demonstrate their poor understanding of the law.
It would be a gross understatement to say the letter signed by Chief of Staff Joseph Kinyua declining to form a Tribunal was not the product of sound legal advice. The JSC only has jurisdiction on serving members of the Judiciary. The suggestion that Tunoi was “retired” following the High Court ruling in his case is impeached by the fact that had the judge been retired, the Judicial Service Commission would not have been recommending a tribunal to probe him in the first place.
There was understandably uproar and consternation following the release of this letter.

The Law Society of Kenya (LSK) warned that a tribunal formed beyond the statutory 14-day limit was open to challenge on its legality, which would have aborted the investigation into the alleged misconduct by the judge.
The Speaker of the National Assembly, Mr Justin Muturi, rightly dismissed out of hand a letter signed by Mr Kinyua on behalf of the President as ‘casual’ and not having the force of law. He said the letter, which gave justification for the President’s initial decision not to form the tribunal, cannot be regarded as originating from the Head of State. “We have not seen anything under the seal and signature of the President. We live in interesting times and have seen all manner of functionaries make casual communication and assume that it is the President speaking,” said the Speaker in reference to Kinyua’s letter.
This is apparently a sequel to the president ‘vetting’ judge’s saga that was also flagrantly unconstitutional. The glib of the President’s advisers and handlers means that he had to make an about-turn and appoint a tribunal at the last-minute at the risk of running afoul of the law. The President and the country have been deeply embarrassed.
This is the price we have to pay for protecting a lacking professionalism in the system. This was something about as simple as obeying a traffic light, yet even this was apparently mishandled by government operatives.

But the matter did not end there. Even when considering the person to chair the commission, they botched it up big time making both themselves and the President seem even more confused as to what they were doing. They settled for a man who did not meet the basic requirements set out under the Constitution. I am left to wonder which version of the Constitution they keep referring to.