Retirement option would have saved Tunoi the agony of facing probe

Supreme Court Judge Philip Tunoi at the Supreme Court of Kenya in Nairobi on February 1, 2016 for the Special hearing by the Judicial Service Commission on allegations that he received Sh200 million bribe to rule in favour of the Nairobi Governor Dr Evans Kidero during the election petition pitting him against Ferdinand Waititu. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Had he retired at age 70, as required by the Judicial Service Commission, Justice Philip Tunoi, 72, would not be in the position he finds himself in.
  • The judge is facing the possibility of an ignominious exit from the Judiciary, after a committee of the JSC found that there was substance to an allegation that he received a bribe of Sh202 million to decide an election petition in favour of Nairobi Governor Evans Kidero.
  • The JSC committee has now recommended to advise that the President appoints a tribunal to look into the possibility of removing Justice Tunoi from office.
  • More recently, Justice Tunoi was involved in a similar spat with Chief Justice Willy Mutunga when the former, together with three other judges, waded into the retirement age controversy, in which he now has a personal interest, by insinuating the issue into the judgment of an unrelated case before the Supreme Court.

Had he retired at age 70, as required by the Judicial Service Commission (JSC), Justice Philip Tunoi, 72, would not be in the position he finds himself in.

The judge is facing the possibility of an ignominious exit from the Judiciary, after a committee of the JSC found that there was substance to an allegation that he received a bribe of $2 million (Sh202 million) to decide an election petition in favour of Nairobi Governor Evans Kidero.

The JSC had decided that all judges must retire at 70 years, as provided by the new Constitution. But Justice Tunoi contested that interpretation, and instead argued that his correct retirement age was 74 years, as provided by the repealed Constitution which was in force when he was appointed judge.

The disputed interpretation of the correct retirement age led to lawsuits — first by Justice Tunoi and High Court Judge David Onyancha, and later by Deputy Chief Justice Kalpana Rawal.

It was while Justice Tunoi remained in office, on account of a court order that prevented JSC from carrying out its retirement decision, that he sat as part of the bench of the Supreme Court in the fateful petition against Governor Kidero.

The JSC committee has now recommended to advise that the President appoints a tribunal to look into the possibility of removing Justice Tunoi from office. It is expected that the President, acting on the recommendation of the JSC, will constitute such a tribunal.

It is further expected that the President will announce the suspension of Justice Tunoi from office, pending the outcome of the tribunal, which he must establish within 14 days.

Justice Tunoi can still avoid a tribunal if he chooses to retire at this point. But he has reportedly indicated that he would rather face a tribunal, if one is to be appointed, since he would like to clear his name. The Constitution provides that a judge can contest the decision of a tribunal in the Supreme Court.

CONTROVERSIAL PERSON

Already a controversial person even before the allegations that he received a bribe from the city governor, Justice Tunoi has been lucky on previous occasions when his conduct would arguably have led to possible removal proceedings.

In 2001, Justice Tunoi was involved in a well-publicised quarrel with two other judges of the Court of Appeal — Justices AB Shah and Richard Kwach — over a mysterious disagreement on the content of a judgment that the three were to write after hearing an appeal.

More recently, Justice Tunoi was involved in a similar spat with Chief Justice Willy Mutunga when the former, together with three other judges, waded into the retirement age controversy, in which he now has a personal interest, by insinuating the issue into the judgment of an unrelated case before the Supreme Court.

While the Law Society of Kenya has been trying to get the JSC to commence removal proceedings against all the judges involved in that incident, Justice Tunoi now finds himself facing removal proceedings over a totally unrelated incident. 

Justice Tunoi is one of seven justices who sit in the Supreme Court, which is Kenya’s highest court. The court is a creation of the country’s 2010 Constitution, and is part of the reforms that were considered necessary to address a history of corruption and institutional weakness in the Judiciary.

The establishment of the Supreme Court, as an additional tier in the Judiciary, was first recommended by a committee of experts made up of eminent Commonwealth jurists whom the Constitution of Kenya Review Commission invited to specifically advise on judicial reforms, which were part of the constitutional reforms.

Among others, the experts recommended that to overcome an ingrained culture of subservience and corruption, a higher court should be established whose moral and intellectual leadership would reverse the existing culture and ameliorate the damage that this had done to the Judiciary.

When, eventually, the Supreme Court was established, and because of the arguments that had gone into the decisions about its creation, there were expectations that it would be constituted by judges brought from outside the existing and much-maligned Judiciary.

MORAL LEADERSHIP

In the end, however, four of the seven judges —  Chief Justice Mutunga, first deputy Chief Justice Nancy Baraza, Justice Njoki Ndung’u and Smokin Wanjala — were outsiders.

Justices Tunoi, JB Ojwang' and Mohammed Ibrahim were promoted from the High Court. It is arguable that other than Chief Justice Mutunga, who at times has shown great moral leadership, the rest have had a banal approach to their judicial work, which has prevented the court from asserting itself on the country.

And now some of these judges are accused of the same kind of corruption the former Judiciary was accused of.

The Tunoi incident is likely to have a profound and lasting effect on public confidence in the Judiciary and, specifically, the Supreme Court, and is likely to provide strong justification for reforms in that court, for which there was already growing agitation.

The Supreme Court faced significant criticism over its handling of the petition arising from the presidential elections held in 2013 and, as the country heads into another election next year, one question whose urgency has been growing is whether the court could be trusted to play its role in those elections.

The Tunoi incident has significantly weakened the position of those defending the court, even though it does not necessarily shed more light on what kind of reforms would be acceptable to the Supreme Court.

One suggestion has been that all judges in the court must now be shown the door, while another has been that the country does not really need a Supreme Court in the first place.

Previously, there were suggestions that membership of the court be interspersed with foreign nationals, who would be more likely to rise above the country’s parochial politics, a factor that clearly affects the standpoints of the court. However, this suggestion was not explored meaningfully.

PART-TIME JUDGES

There have also been arguments that given the relatively light duties that the Constitution confers on the Supreme Court, the court should be made up of part-time, rather than full-time judges, an argument that seems to go well with the suggestion that consideration be given to incorporating foreign judges into the court. Debate on all these suggestions is likely to return, occasioned by the Tunoi incident.

There is a sense that his previous poor record left little room other than to recommend a tribunal against Justice Tunoi. Although wise counsel would dictate that he retires now to contain the massive damage he has already done to the Judiciary, Justice Tunoi must battle against removal proceedings, as he also resists attempts by the JSC to retire him from office. 

If he chose to retire, he would leave without clearing his name. If he fought on, it would only prolong the time he would hold the Judiciary to ransom. And whatever the outcome of his fights, he would probably be due for retirement, anyway.

It is difficult to see how Justice Tunoi will avoid a disgraceful end to his career. Some would argue that such an end is richly deserved.