Supreme Court Judge Philip Tunoi on Friday said he will fight on to save his career after a special committee found he had inappropriately interacted with a litigant in a matter that was pending before the top court.
Consequently, the Judicial Service Commission recommended that the judge faces a tribunal in the matter in which he is accused of receiving $2 million (Sh202 million) from Nairobi Governor Dr Evans Kidero.
If the tribunal, to be set up by President Uhuru Kenyatta, establishes that the bribery indeed took place, then Justice Tunoi will be sacked. But Dr Kidero will also be under pressure to quit office.
He could further face legal action and impeachment.
“The commission is satisfied that a prima facie case of gross misconduct and misbehaviour has been disclosed against Justice Tunoi. We, therefore, recommend to the President that a tribunal be established to investigate the matter,” said Chief Justice Willy Mutunga.
The commission could, however, not ascertain if Dr Kidero bribed the judge to rule in his favour in the election petition filed against him by Kabete MP Ferdinand Waititu, only saying they were satisfied it was an issue that requires further investigations by the tribunal.
Justice Tunoi will be the second member of the Kenya’s highest court to face a tribunal over misconduct. In 2012, Deputy Chief Justice Nancy Baraza opted to resign after a tribunal was formed to investigate her after claims that she assaulted a guard at a Nairobi shopping mall.
Friday, in reaction to the committee verdict, Justice Tunoi maintained his innocence, saying he is ready to face the tribunal as soon as it is established and prove that the allegations against him are false.
Through his lawyer Fred Ngatia, the judge promised a serious legal battle against his accuser, former journalist Geoffrey Kiplagat, saying the tribunal will present the perfect opportunity to establish the truth.
“The real battle now begins. The judge did not have the opportunity to face his accuser before the JSC special committee but will now have the chance to cross-examine him and prove that all he has been saying are fiction,” said Mr Ngatia.
A third judge, Justice Joseph Mutava of the High Court, was also suspended over misconduct and is currently facing a tribunal, which will determine whether to sack him from the Judiciary.
Dr Mutunga said the JSC had deliberated and adopted the report by the special committee appointed last week to review the claims by Mr Kiplagat.
According to the CJ, all the commissioners were satisfied that there was inappropriate interaction between Justice Tunoi and Dr Kidero’s agents in a matter that was pending before the Supreme Court.
“This in the opinion of the commission amounts to gross misconduct and misbehaviour, sufficient to warrant the establishment of a tribunal to further investigate the matter,” said the CJ.
CALLS FOR SUPREME COURT DISBANDMENT
Once the JSC forwards the recommendation to the President, he will have 14 days to establish the tribunal and suspend Justice Tunoi until the tribunal either clears him or recommends that he be sacked from the Judiciary.
According to Article 168 of the Constitution, the tribunal will consist of seven members, four of which must be retired or serving judges.
The law also provides that the judge will be on half salary until the tribunal concludes its work.
The JSC’s decision to recommend a tribunal reinvigorated calls by lawyers to have the Supreme Court disbanded, claiming that the judges have lost their relevance and a new Bench should be appointed.
According to Law Society of Kenya (LSK) chairman Eric Mutua, the decision confirmed that the bribery claims were not frivolous and that other judges must have also benefitted if at all it is true Judge Tunoi was given Sh202 million to influence the outcome.
“The writing is on the wall; it is time for the Supreme Court judges to pack and go. If the tribunal finds he received the bribe, then the conclusion will be that he shared it with his colleagues,” said Mr Mutua.
Friday's decision throws the future of the Supreme Court into doubt.
The LSK, the National Council of Churches of Kenya (NCCK) and the Supreme Council of Kenya Muslims were in agreement that the integrity of the court has been eroded and may take long to repair.
The bribery allegations, contained in an affidavit sworn by Mr Kiplagat, relate to the ruling in a petition which was filed by now Kabete MP Ferdinand Waititu.
Mr Mutua vowed that the legal fraternity will push for the total overhaul of the current Supreme Court.
“The moment the JSC recommended that this matter needs to be investigated by a tribunal, it means there is prima facie evidence of bribery, there will be no turning back in our demand to get the whole Supreme Court as constituted overhauled,” he said.
Mr Mutua argued that the presence of preliminary evidence that the judge was “given money” soils the entire Supreme Court. “The LSK’s position is that all of them have to go,” he said.
Lawyer Ahmednassir Abdullahi said even though the allegation was personal against Justice Tunoi, its stench covers the entire Supreme Court in the eyes of the public.
“This is something personal. It only affects him as a person. The court as an institution, however, has taken a hit. Its standing in public perception has been eroded and stained. Once a member of the Supreme Court is indicted, the malfeasance spreads,” he said on phone.
Mr Abdullahi, a senior counsel, argued that if more judges were sucked into the allegations, they will have to face the law. He claimed that Justice Tunoi appears to have agreed, in his affidavit, that a brief case was exchanged. “Probably he was made aware of CCTV recordings,” he said.