Mutunga succession and budget row behind dispute in corridors of justice

The battle for the control of the Sh15 billion Judiciary budget and the future composition of the powerful Supreme Court are at the heart of the crisis that has rocked the corridors of justice in the past week.

Also linked to the vicious fights are succession battles in the Judicial Service Commission (JSC) where four members will be replaced before the next General Election.

The Supreme Court has seven judges — Chief Justice Willy Mutunga, his Deputy Kalpana Rawal, Justices Philip Tunoi, Smokin Wanjala, J.B. Ojwang, Mohammed Ibrahim and Njoki Ndung’u. Justice Mutunga’s first term ends in 2017, while Justices Rawal and Tunoi are approaching retirement age.

Justice Isaac Lenaola’s term on the JSC ends next month, and at least three High Court judges — among them David Majanja — are campaigning to replace him.

The composition of the Supreme Court and the JSC are seen as crucial because a presidential election petition is heard and determined by the court.

Radical changes in the administration system at the Judiciary and the personal and administrative privileges accorded to judges are also being listed as reasons for the vicious war that has turned a powerful spotlight on Dr Mutunga and his team.

The intrigues, which the Sunday Nation has learned have been simmering for at least one year, boiled over last weekend when the JSC suspended Chief Registrar Gladys Shollei and formed two teams to investigate her.

Mrs Shollei came out with guns blazing and accused the JSC of making an irresponsible decision. The high-profile controversy has sucked in Parliament which has launched its own investigation into why Mrs Shollei was suspended and whether it was done according to the law.

WANTED HER OUT

On Wednesday, Mrs Shollei told MPs that three JSC commissioners — Mr Ahmednasir Abdullahi, Ms Emily Ominde and Justice Mohammed Warsame — wanted her out of office for personal reasons ranging from recruitment to property acquisition.

Parliament’s Legal Affairs committee has summoned the JSC to appear before it on Thursday to explain their action.

Then there is the Sh15 billion budget for salaries and procurement which the chief registrar is accused of mismanaging.

Members of the Judicial Service Commission who spoke to the Sunday Nation on condition of anonymity linked the bitter fallout to disputes over sitting allowances for commissioners, recruitment and acquisition of property.

For instance, the Judiciary bought a house for the Chief Justice at Sh310 million from Machakos Senator Johnstone Muthama on March 26. The tender floated in October last year attracted five bidders. Some JSC members have questioned the merit of the transaction, especially because the initial budget was Sh200 million. Mrs Shollei says the price change was due to market forces of supply and demand.

“I was not involved in the transaction. There was an advertisement by the Judiciary, and our company applied like any other. It was not Muthama but our company (Johnstone Muthama Holdings Ltd). I’m not sure what the price was, but it was in the region of Sh300 million. This was clean business though I was not personally involved,” Mr Muthama said on Saturday.

It has also emerged that some JSC members may have been pushing for unwarranted meetings in order to earn hefty sitting allowances. A commissioner earns Sh80,000 for every sitting.

Documents presented to Parliament and seen by the Sunday Nation show that last year, the commission held 247 meetings. It would mean that a commissioner who attended all 247 meetings would have taken home approximately Sh1.6 million every month in allowances.

In the 2012/2013 financial year, documents show, commissioners gobbled up Sh377 million in allowances for board meetings, conferences and seminars, foreign travel and subsistence, catering service and accommodation, gifts, food and drinks and legal fees.

“Some of us are uncomfortable about some of the meetings our colleagues insist on holding, including to interview candidates for employment at the level of legal researchers. Some of that can be handled by judges and magistrates, but you know, there are those of us who see this as a full time employment. It is not,” a commissioner told the Sunday Nation on condition that he was not named to avoid jeopardising investigations.

Also at the centre of controversy is a six-year deal to rent office space at Elgon House and Rahimtullah Towers in Upper Hill at Sh110 million a year.

The Sunday Nation has also learnt that the sweeping administrative powers of the registrar have upset old networks that traditionally controlled how money was spent in the Judiciary.

HOLDER OF OFFICE

In the previous system, the role was handled by a magistrate, who would be appointed by the Chief Justice. The CJ would appoint and transfer the holder of the office at will.

Additionally, judges would sit on crucial administrative committees handling such high-profile matters as finance and procurement, all of which have since changed in the last two years with the hiring of new administrative staff and secondment of senior employees to handle finance and ICT from the Treasury and other government departments.

Multiple sources in the Judiciary said Mrs Shollei had fallen out with appellate judges after she unilaterally moved them to Elgon House in Upper Hill, Nairobi.

The judges are said to have resisted the move, saying the Supreme Court premises in the city centre had enough space for them.

But a Shollei ally in the courts dismissed this as a red herring, saying the real problem was reduced allowances following the opening of appellate courts in major towns outside Nairobi.

Previously, there were about nine Court of Appeal judges sitting in Nairobi. They would travel to different courts around the country to hear appeals with each bagging Sh18,000 daily in allowances.

Things changed last year when the law was amended to increase the number of judges in the second-highest court in the land to 26. With the judges sitting in designated stations around the country, it follows that they don’t have to travel and therefore do not earn the huge allowances.