Tunoi’s claim is a charge against entire court

The allegation is that Justice Philip Tunoi accepted a bribe of $2 million in order to give a favourable judgement to Nairobi Governor, Evans Kidero, in the election petition against him.

Chief Justice Willy Mutunga announced that the investigative agencies of the government had carried out a verification of the allegations in the complaint and that “in view of the seniority of the judge, the gravity of the allegations, and the public interest this matter has generated”, he had convened a special session of the Judicial Service Commission to address the allegations.

The central complaint against Mr Justice Tunoi, that he allegedly received a bribe which was handed to him in cash in a drive-by operation at a petrol station, is likely to be difficult to establish as it is highly unlikely that receipts were exchanged.

The absence of a paper trail means it will be difficult to establish the claim that a bribe was given.

The complaint, however, also makes specific allegations about the use of telephones in the alleged communication between the judge, the representatives of Dr Kidero and complainant Geoffrey Kiplagat, who represents himself as a key go-between among a group of co-conspirators.

Kiplagat has, in several places in the affidavit, made specific claims about the telephone numbers that were used and to whom these belonged.

Presumably, it is possible to carry out an independent verification of these claims. If successfully verified, it would then require Justice Tunoi to explain the underlying relationship.

If the case against President Kenyatta at the ICC is anything to go by, the verification of the phone records will not necessarily be a straight forward issue.

Part of the case against the president was that he maintained telephone contact with the leadership of the Mungiki group in the aftermath of the post-election violence, leading to questions as to what business Kenyatta, at the time a high profile minister in the Kibaki government, had to do with an imprisoned Mungiki leader.

However, the relevant telephone records were never produced in court and neither was a confirmation given, that Mr Kenyatta was the owner of a phone number used in the communication.

The case against Justice Tunoi is based on an assumption that the relevant telephone company will cooperate in the verification of the telephone numbers that were used in the alleged transaction, something that is difficult to guarantee.

COURT SCANDAL
Even in the absence of actual proof that the judge received a bribe, it may still be possible to cite him for misconduct if it can be proved that he was in touch with the complainant and Dr Kidero’s people at the time.

Proof that the judge made contact with Kidero’s people would create the impression of impropriety on the part of the judge because the governor had a pending case before him.

The question of the appearance of impropriety has remained central to codes of ethics governing the conduct of judges in many parts of the world.

In the US, the American Bar Association (ABA) issued the first code of judicial conduct in 1924 which directed that “a judge’s official conduct should be free from impropriety and the appearance of impropriety.”

The 1924 code had been dormant for half a century until a scandal hit the US Supreme Court when it was discovered that Justice Abe Fortas had received a consultancy fee of $20 000 from a private foundation whose director was under investigation for selling unregistered stock.

Although Justice Fortas cancelled the contract and refunded the money when the director was indicted, Time magazine claimed that his conduct raised “a question about the appearance of virtue on the court” and he was pressured to resign from the court.

The Fortas affair motivated the ABA to revise the judicial code of ethics in 1974, lifting the prohibition against the appearance of impropriety from an aspirational canon into a binding rule.

A more recent revision of the code in 2007 had dropped the appearance of impropriety as a basis for disciplinary action against judges.

However, this omission caused a furore within the profession, and the ABA House of Delegates reinstated the appearance of impropriety rule.

The provisions of the Public Officer (Ethics) Act, which governs the conduct of officials seem to suggest sanctions based on the appearance of impropriety, similar to the ABA code of conduct.

The Act requires a public officer “to carry out his duties in a manner that maintains public confidence in the integrity of his office”.

PROFOUND EFFECT
While proof of bribery would indicate a certainty of sanctions against Justice Tunoi, he may still face sanctions if it is proved that he was in contact with Kidero’s team at the material time and if the JSC takes the view that such contact created an appearance of impropriety.

Whatever its eventual outcome, the effect of the Tunoi affair on the Supreme Court and the judiciary, remains profound.

Since the bench hearing the Kidero case was made up of seven judges, bribing a single judge would have been insufficient to guarantee the kind of outcome that the bribery was meant to achieve.

It is therefore more logical to assume that if a bribe was paid, and given the very large sums of money mentioned, it was for the benefit of such a number of judges as would constitute at least the majority of the bench.