Kinyua is a genius

Uneasy lies the head that wears the crown. Or words to that effect. Being Uhuru Kenyatta in 2016, when judges and favoured ex-Cabinet Secretaries are getting the rogue affidavit treatment, can't be easy. It might even be a little harrowing. It is difficult because of idiotic buzz-phrases: Tyranny of Numbers, Ethnic Balancing, War on Corruption, et cetera. It is, however, the Affidavit Age, and with it comes certain difficult moments because of an overzealously strict interpretation of the Constitution, especially on the mandates of constitutional Commissions.

Being Uhuru Kenyatta's Chief of Staff is much, much worse. Joseph Kinyua, the eponymous insider, is not having the time of his life as Head of the Public Service, something his predecessors used to enjoy very much. Mr Kinyua is publicity shy and if you've ever had the good fortune of meeting him in public, it is almost likely you would have had to do a double take before recognising that indeed it is the Mr Kinyua that you had encountered. Soft-spoken Mr Kinyua may be, or have a reputation for being, but it is swiftly becoming a truism that he has a spine made of titanium. His latest letter to the Judicial Service Commission should only reinforce that view.

The Judicial Service Commission, bullied into acting on the contents of an incoherent affidavit, have recommended that the President should appoint a tribunal to investigate the conduct of a judge of the Supreme Court. The judge, it is alleged, together with unknown members of the Supreme Court, accepted a $2 million bribe to rule in favour of a respondent in an appeal revolving around an election petition. The judge, in a totally unrelated matter, had earlier sued the Judicial Service Commission to prevent the Commission from retiring him from the Supreme Court on account of his having attained the constitutionally set retirement age of seventy years. He wishes to retire at seventy four years, just as if he was a judge under the former constitutional order. His suit is currently being heard by the Court of Appeal.

Mr Kinyua, soft-spoken and all, has been asked to slow things down. At least that is what I think he's been asked to do, because his letter to the JSC is reasonable in its request. The judge, explains Mr Kinyua, had been retired by the JSC when he attained the age of seventy years. He sued the JSC in the High Court, which upheld the decision of the JSC. He appealed to the Court of Appeal. In Mr Kinyua's opinion, the judge is not a judge because the High Court says so and therefore, the President cannot appoint a tribunal to investigate the conduct of a person who is not a judge, unless the Court of Appeal says otherwise. In which case, if the Court of Appeal reverses the High Court, the President shall appoint the Tribunal after following the due process of the law, which may require another "investigation" (though that would raise the spectre of double jeopardy) or the reiteration of the earlier recommendation for the President to appoint a tribunal, et cetera.

A curious thing, though. If Mr Kinyua is right, the judge is not a judge, and has not been since the date that the High Court declared that the JSC could retire him on account of his having attained the constitutionally-set retirement age. Therefore, the JSC can't investigate his conduct or recommend to the President to appoint a tribunal to investigate him. Based only on the JSC's actions, the judge is either still in office and the JSC can investigate his conduct, or he is not in office and the JSC cannot investigate his conduct. If it comes to pass that the JSC can hold two mutually exclusive positions at the same time, I wonder whether anyone can blame the President or Mr Kinyua for doing the same exact thing on other controversial matters.

Update, 23/2/16
It turns out that the joke is on us. The President seems to have ignored his Chief of Staff's missive to the Chief Justice. Or maybe he just realised that he wasn't getting any constitutional love from Kenyans on Twitter. In any case, he has suspended the judge and appointed a tribunal headed by the former chairperson of the Judges' and Magistrates' Vetting Board to investigate the judge's conduct. (Just in case you forgot, in 2012 the judge was vetted and declared fit to serve by the Judges' and Magistrates' Vetting Board.)