Powerful House committee issues devastating scorecard on Mutunga

A powerful parliamentary watchdog committee has issued a devastating indictment of Chief Justice Willy Mutunga’s leadership of the Judiciary, accusing him of failing to assert himself as officials engage in activities which cost taxpayers millions of shillings.

In a new 144-page report tabled in the National Assembly, the Public Accounts Committee (PAC) paints a picture of a “headless” Judiciary in which Dr Mutunga was seemingly unable to control his officials amid massive misappropriation of resources and routine flouting of laid-down rules for management of public funds.

“The committee notes with grave concern the apparent widespread financial and procurement malpractices in the Judiciary, compounded by what bears all the hallmarks of a culture of impunity that routinely condoned breaches of procurement procedures and financial regulations,” concludes the PAC.

The report focuses on a turbulent time, largely between 2013 and last year, when then Chief Registrar of the Judiciary (CRJ) Gladys Shollei and the Judicial Service Commission (JSC) were involved in debilitating battles that frequently played out in public. Mrs Shollei was eventually sacked and has since been charged over irregularities in the purchase of a Sh310 million house for the Chief Justice following separate investigations by the Ethics and Anti-Corruption Commission.  

But it could not have come at a worse time for the Judiciary when there is an intense behind-the-scenes scramble for succession at the top levels of the institution and when several senior judges, including Deputy Chief Justice Kalpana Rawal, are battling against retirement.

The PAC did not find Dr Mutunga personally responsible for corruption but strongly criticises him for failing to offer either strategic direction or management oversight and of being a virtual bystander in a key period of transition to the new judicial order.

The committee finds that while Dr Mutunga offered many “lyrical” speeches promising reform, few tangible steps were taken to back up the pledges.

“(The) Chief Justice failed to provide leadership on several occasions. This was evident in the procurement of his house, the Elgon Place radiation saga, and the general relationship between the former CRJ and the JSC,” the report states.

Elgon Place is an office block in Upper Hill, Nairobi, which Appeal Court judges refused to move into in 2013 over fears that they would be exposed to radiation.  

In the report, Mrs Shollei comes in for particular criticism and is accused of being the prime driver in a number of questionable administrative malpractices. 

“The committee finds that (Ms Shollei) failed to perform her duties as stipulated in Article 161 of the Constitution and as spelt out in the Judicial Service Act, 2011. She was the accounting officer of the institution and was responsible for approving all expenditure.

MISLEADING INFORMATION

“The committee also takes great exception to the former Chief Registrar deliberately giving misleading information as regards procurement of Mayfair Court premises, in her written submission,” say the MPs, referring to another ill-fated lease agreement.

The PAC invited the auditor-general to probe the Judiciary on October 17, 2013, following a number of public quarrels featuring JSC, Dr Mutunga and Mrs Shollei.

The committee findings make for disturbing reading, accusing the Judiciary of operating within a culture of impunity and Dr Mutunga, who snubbed the committee, of sitting back and watching as the Judiciary continued to wallow in corruption.

According to the report, large-scale financial impropriety within the Judiciary went on for almost a year before JSC finally dismissed Mrs Shollei.

When the Judiciary was rocked by a series of scandals, the report observes: “there is no evidence of any tangible step that Dr Mutunga took to ensure improved financial management and governance of the Judiciary in general”.

This, the MPs concluded, was a clear indicator of a failure of leadership. Members of the committee say they were threatened in the course of drafting the report.

At one point, PAC chairman Nicholas Gumbo (Rarieda, ODM) claimed to have received a threatening message. The work was started by a previous committee chaired by Budalang’i MP Ababu Namwamba, which was itself disbanded after it was rocked by corruption allegations.

Between 2010 and 2012, the budget for the Judiciary went up significantly from Sh3 billion in the 2010/2011 financial year to Sh16 billion in 2012/2013, in line with demands by the Constitution that the institution should have greater say in setting its operational budget.

But MPs found that these amounts of money were poorly used. “Procurement was done in a manner that flouted provisions of the Public Procurement and Disposal Act 2005, and regulations. This was noted from irregularly constituted tender committees; direct procurements; purchase of second-hand goods; acquisition of a house for the Chief Justice; pre-fabricated court premises; (and) lease of office space.”

The MPs said Dr Mutunga appears to have lost control of the Judiciary to the extent that officials supposed to be his subordinates showed open defiance and ignored his directives.

At one point, according to the report, Dr Mutunga snapped at Mrs Shollei, saying he was not “the headless head of the Judiciary”.

“However, the fact that the (JSC) commissioners could hold so many meetings without the Chief Justice’s knowledge and approval demonstrated a Judiciary ‘without a head’. It is inexcusable that claims to the effect that commissioners routinely transacted personal business at KICC disguised as official meetings (only to end up lodging claims for payment for the same) without the Chief Justice’s knowledge, drew no sanctions from the head of the Judiciary,” the report states.

The lawmakers recommend that the Chief Justice should take responsibility for all payments made irregularly on his instructions and allowances paid to the commissioners of the JSC for attending meetings that were not convened with his knowledge and approval. 

“Similarly, an audit of all such meetings should be undertaken and the responsible commissioners surcharged,” the report says.

Mr Gumbo’s team accused some JSC commissioners of developing a tendency of asking for sitting allowances for court visits and training sessions that they attended.

This, the committee observes, was clear abuse of state resources. 

“It may seem the JSC was seen more as a cash-cow by some commissioners,” the report states.

Some members of the JSC have since been replaced after their terms ended.

Further, the report accuses Dr Mutunga of continuously approving payments as directed by the finance and administration committee in total disregard of Treasury’s written advisory against this.

Investigations by the Public Service Commission showed that Dr Mutunga was found to be a beneficiary of irregular salary advances totalling Sh1.6 million from the Judiciary.

SECURITY CONSULTANT

The report also questions the single-sourcing of a security consultant who was subsequently engaged and paid large sums of money without due process.

“Mr Evans Simiyu Werunga, a security consultant/contractor, received very questionable payments totalling Sh30,240,975 for security consultancy/construction at the private residences of Supreme Court judges and other senior officials in the Judiciary, largely through word-of-mouth engagements without official approvals and documentation,” the report states.

According to the report, the Judiciary directly contracted Jomo Kenyatta University of Agriculture and Technology Enterprises Services Ltd to provide it with consultancy services.

The university firm, according to the PAC report, was paid some Sh157 million to provide services that were not justified.

The committee alleges the proceeds of the irregular contracts went to private lecturers, individuals and a private entity, pointing to what could be a scheme to defraud the public. 

“It is also noted that the university firm engaged in professional dishonesty by not giving discounts for homogenous/duplicated designs as required by laws governing consultancies of this nature,” says the report.

The PAC, in its recommendation, directed Chief Registrar Anne Amadi to institute recovery measures on contractors who were paid and are yet to make full delivery of goods or services, and officials found responsible for the loss surcharged.

It also recommended that companies involved in financial impropriety and breach of contract at the Judiciary be blacklisted from government tenders.

The report says poor record keeping within the Judiciary led to loss of millions of shillings in suspect transactions.

For instance, the committee notes that the institution, through the Judiciary Training Institute account, paid Sh62.8 million towards the presidential inauguration. “Parliament had enacted a law on Presidential Assumption of Office in June 2012 which approved for separate allocation of funds towards this national function. The committee also notes that Treasury is yet to refund this amount,” says the report.

The committee also accuses the Judiciary of making payments for various expenditure without vouchers as per the Government Financial Regulations.

Mr Gumbo and his team of 26 MPs rejected explanations offered by officials who claimed that they found the record keeping protocols in the old Judiciary in a shambles.

“It was the responsibility of those in office to ensure orderly and safe custody of (documents). Authenticity of some of these payments cannot thus be ascertained. These payments were to the tune of Sh262 million,” the committee observes.

The extent of public funds misuse was also evident in the manner the Judiciary irregularly opened bank accounts. According to the report, some accounts had no cash books, or the books were poorly maintained.

Also, the committee observes that some accounts still have former employees as signatories, posing a risk of loss by transaction by non-employees. One such account is the Milimani Law Courts Revenue Account that had Mrs Shollei as a signatory.

In a searing section of the report, the committee questions the nomination of Dr Mutunga to head the Judiciary, saying it was a mistake to pick a man with limited managerial experience to run a large and complex institution.

“Placing a man with limited public service experience, and no record of having led a large organisation, to head a crucial arm of Government like the Judiciary, must not only be questioned, but should be a critical point of consideration in similar future appointments,” the report observes. PAC accuses Dr Mutunga of doing little to fundamentally reform the Judiciary beyond giving speeches “laden with lyrical content”.

In the past, Dr Mutunga has acknowledged refofrms have not been easy.

“We found an institution so frail in its structures, so thin on resources, so low on its confidence, so deficient in integrity, so weak in its public support that to have expected it to deliver justice was to be wildly optimistic…” .