Tunoi tribunal: Graft has never been fought this way anywhere

Never has corruption been fought this way anywhere in the world!

Saturday March 5 2016

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. If anyone ever thought that Mr Uhuru Kenyatta was serious about fighting corruption, then exhibit A must be the cynical appointment of Sharad Rao as chairman of the tribunal investigating Justice Philip Tunoi. PHOTO | EVANS HABIL | NATION MEDIA GROUP

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. If anyone ever thought that Mr Uhuru Kenyatta was serious about fighting corruption, then exhibit A must be the cynical appointment of Sharad Rao as chairman of the tribunal investigating Justice Philip Tunoi. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

By MAINA KIAI
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If anyone ever thought that Mr Uhuru Kenyatta was serious about fighting corruption, then exhibit A must be the cynical appointment of Sharad Rao as chairman of the tribunal investigating Justice Philip Tunoi.

It was cynical because he knew that someone somewhere, possibly including Judge Tunoi himself, would challenge the appointment in court, on the basis that Mr Rao does not qualify to be a judge of any court in Kenya having long passed the retirement age.

This has now been done. We can argue whether this challenge has merit or not, as we wait for the High Court to rule, but one thing is clear: There will be delays before the tribunal can ever get started on ascertaining Judge Tunoi’s culpability.

And one need not be a rocket scientist to ascertain that this is exactly the outcome that Mr Kenyatta wanted all along: Delay the tribunal for as long as possible, or scuttle it totally.

Never has corruption been fought this way anywhere in the world!

His mindset was clear from the start, first with the shenanigans about not receiving all the documents from the Judicial Service Commission.

He followed this with the outrageous claim, signed by Chief of Staff Joseph Kinyua, that there was no need to form a tribunal since Judge Tunoi had effectively retired following a decision of the High Court that declared 70 to be the retirement age.

The fact that this decision had been stayed, and that Judge Tunoi was still receiving his full emoluments and perks as befitting a Justice of (our lavishly paid) Supreme Court, did not seem to matter.

So the question to ask, again and again, is what is behind all these games and lies?

Whatever it is, it must be significant enough for Mr Kenyatta to allow himself to look this disorganised, confused and pro-corruption simply to avoid this tribunal.

PUBLIC OFFICERS ETHICS ACT

Incidentally, in all these shenanigans, a case could be made for violating the Public Officers Ethics Act that prohibits public officials from deliberately lying to the public, as they appeared to do when they blamed the Judicial Service Commission, and for lack of good faith in appointing someone who they knew, or should have known, was not qualified to chair the tribunal.

But then again, maybe the impunity that often comes with high office in Kenya means that they simply don’t care about “small” things like the law and believe that might makes right.

So could the reluctance to do a proper, effective, transparent and fair tribunal have something to do with politics which is corruption’s twin brother in Kenya?

If so, it obviously can’t be about protecting Governor Evans Kidero of the opposition Cord, despite his early flirtation with Jubilee.

For sure the Jubilee regime would love to see a Cord governor fall, and with this tribunal they get a chance to dirty Cord which has been freely and effectively dishing out the corruption tag on Jubilee.

Moreover, if indeed the tribunal does rule that there was corruption or the appearance of it, Jubilee would get a chance to control Nairobi before the next election, something William Ruto announced is a Jubilee priority.

Or maybe the reluctance goes way beyond the alleged $2 million bribe that is the subject matter of the supposed tribunal.

Still un-denied news reports tell us that Judge Tunoi first denied before admitting that he knew his accuser Geoffrey Kiplagat, changing his mind, apparently, when it became clear that text messages could be traced.

More important, however, are the news reports that assert that Judge Tunoi offered to retire if the committee investigating the claims agreed to clear him, before it even started its work.

CONSTITUTIONAL CRISIS

These are weighty allegations, and the tribunal should start with them, in open court, for they depict a way of “justice” not envisaged by the constitution, and explain why so much is wrong in the Judiciary.

And if proven true, then every decision where Judge Tunoi sat in, would be questionable.

This means that the constitutional crisis that Mr Kinyua feared may not be far-fetched after all, for it would further delegitimise the 2013 Supreme Court judgment in the election petition.

Is this what Mr Kenyatta actually fears?

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