Kenya's President Uhuru Kenyatta may face a constitutional court to compel him to set up a tribunal to investigate Supreme Court judge Philip Tunoi, who is accused of taking a $2 million bribe to influence the outcome of an election petition.
In a letter to the chief justice and Judicial Service Commission chairman Dr Willy Mutunga, dated February 19, President Kenyatta said that suspending the judge would occasion a constitutional crisis and advised that they await the outcome of an appeal that Justice Tunoi had filed challenging a circular to retire at 70 instead of 74.
But lawyers have been exerting pressure on the president to appoint a tribunal within the constitutionally stipulated timelines or face the court. President Kenyatta had until February 23 to set it up after a special committee of the recommended that judge Tunoi be investigated through a tribunal.
Apollo Mboya, the chief executive of the Law Society of Kenya (LSK), said that the president has no discretion other than to appoint a tribunal within 14 days according to Article 168(4), "otherwise he would be in breach of the Constitution".
The president could also could face an impeachment procedure by the Senate for breach of the Constitution, while JSC would then advertise the position of Justice Tunoi as vacant.
The EastAfrican established that President Kenyatta is concerned that proceedings of a tribunal would shatter public confidence in the Supreme Court.
Justice Tunoi is facing pressure to retire so that his retirement would serve two purposes.
One, it would make the setting up the tribunal unnecessary thereby saving the entire judiciary from a public backlash if the probe reveals that other Supreme Court judges were implicated in the bribe saga.
Secondly, it would also end the case he has filed in the Court of Appeal challenging a circular requiring judges to retire at age 70 instead of 74. Justice Tunoi is already 72.