The Angels of the Supreme Court face looming disaster

When the saga at the Supreme Court broke out, Law Society of Kenya chairman Eric Mutua appeared on a TV talk show with an interesting hypothesis.

A Sh200 million bribe sounds excessive for an old judge earning somewhere around Sh750,000 a month, waiting for a pension.

But, in Mr Mutua’s reckoning, the heart of the matter is that you, as the judge, know you can’t determine a case alone.

The seven-member Supreme Court bench rules through a majority, in this case of at least four. So that should explain the large outlay of cash. You can see where the LSK chairman was leading to. It was all hypothetical, of course.

I presume anybody who seeks to influence a judgment of the Supreme Court would know all this.

Actually Mr Mutua was echoing what every ordinary fellow on the street cynically thinks about the story.

SH200 MILLION

I had my doubts how Sh200 million can fit in a normal briefcase. But if the money is in dollars, that’s easy. And one doesn’t have to go to a bank to withdraw or cash the dollars, otherwise red flags will be raised all over.

Unless you are a total bumpkin, you should know there are people in this town who keep such amounts in their houses. Ask yourself why the EACC has formed a habit of raiding suspects in their homes to look for safes.

In the particular Evans Kidero case, the Supreme Court sat as five members at the time the ruling was delivered. Chief Justice Willy Mutunga reportedly was out of the country.

His deputy, Judge Kalpana Rawal, was not around either. Of the remainder, four judges ruled in favour of the governor. One dissented.

(Then there is an important question that one must not lose sight of. Can a dissent be faked in order to give the impression that there was a spirited debate before the final ruling?)

A reading of the explosive affidavit behind this whole saga implicitly spares no-one on this so-called highest Bench – with the possible exception of the CJ.

It is not even a rat you smell in this Supreme Court thing. It is far worse. Make no mistake, this stuff, as it unravels, will have far-reaching ramifications, even touching on the question of the very existence of the Supreme Court itself.

Do we need the outfit? It sits only occasionally to deliver an “opinion” on something or other, all of which have never been particularly profound.

Like the Senate, it is an expensive appendage we probably don’t need. I am inclined to agree with some lawyers who desire drastic amendments to the law to expunge this court. An ad hoc bench from the Appeals Court can be constituted when needed for presidential petitions or such other major occurrences.

One newspaper reported last week that the National Intelligence Service has records of text conversations between the judge in question and the self-styled whistleblower, a village journalist called Geoffrey Kiplagat.

During a TV interview after his name was mentioned, Justice Philip Tunoi had stated very categorically that he did not know, had never met, and had never talked to the fellow. If that assertion gets contradicted, his goose is as well as cooked.

I am not blind to the conspiracy angle which the judge alluded to.

The affidavit in question was sworn way back in 2014. Suddenly it has emerged many months later when Dr Mutunga’s retirement is due in June.

POWERFUL FORCES

Wait a minute: you are telling me a rural media wannabe sat in an Elgeyo-Marakwet pub one day and dreamed of bringing down a Supreme Court judge?

Nah. He looks to be a pawn. Caught up in the vortex of very powerful forces who probably want to reshape, if not destroy, the idle court ahead of 2017.

There is also an odd convergence of interests. There is Dr Mutunga, who had hoped to tame the Judiciary to his liking – but failed. Then there is the political Opposition, which is still furious with the Supreme Court because it did not come to their aid when they were defeated by Uhuru Kenyatta in 2013.

Then there is the ruling Executive, which has been fuming over some security-related rulings from the Judiciary and clearly must want to have a hand in shaping the post-Mutunga Judiciary.

It is interesting that, with the exception of the rather voluble Dr Mutunga, the other two sides are curiously silent on the unfolding drama.

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