Judiciary crisis as top judge is quizzed - Daily Nation

Drama at Supreme Court over arrest of lawyer and top judge

Tuesday August 28 2018

The Supreme Court building in Nairobi.

The Supreme Court building. About 20 politicians who lost their election petitions in the High and Appellate courts have taken their cases to the Supreme Court. PHOTO | FILE | NATION MEDIA GROUP 

By MUTUMA MATHIU
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By JOHN KAMAU
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A Nairobi lawyer was taken into custody by police officers at the Supreme Court mid-day Monday in a day of restrained but high drama within the genteel walls of Kenya's Judiciary.

The lawyer, whose name the Nation is not revealing because he could not be reached to respond to the allegations against him, is be to be charged alongside a Supreme Court judge who is under investigation and facing arrest in the coming days.

Officers from the Department of Criminal Investigations and various other sources told the Nation that consultations were going on between the DCI and the Judiciary on the conduct of the case.

An officer in the team said they were confident they had a “watertight criminal case” against the judge, whom they wish to charge rather than just report to the Judicial Service Commission. The case against the judge involves crimes and not “a matter for the JSC, which in any case is not properly constituted”, added the source.

MANAGING RELATIONS

The Nation formed the impression that the police were merely managing relations with the Judiciary and did not wish to be seen to be disrespecting the institution or the Chief Justice, and were bidding their time to take the suspect into custody. This, though, is not the only case under investigation at the Judiciary.

Detectives were seen at the boardroom on the ground floor of the Supreme Court building, where the offices of the Chief Justice are located. A source at the Judiciary said he saw one of the Supreme Court judges get out of the room in a state of agitation.

The Judiciary source said there was a highly emotional encounter between the detectives and the judge in chambers, but that no arrest was effected at that stage. The judge reportedly left the Supreme Court at 6.30pm.

At the Directorate of Criminal Investigations headquarters on Kiambu Road, Nairobi, reporters were told that a senior counsel had spent time in the offices of top officers. Both the senior counsel and the officers denied meeting.

VALUE OF PREMISES

Reporters were also told, but could not satisfactorily confirm, that a high-value suspect was in the premises. There were elaborate efforts by officers from the DCI and prosecutors to throw reporters off-course, amid swirling rumours in the evening that the judge may have been arrested. The Nation could not confirm the rumours by press time.

Earlier in the day, panic swept through the Supreme Court following the Nation’s exclusive report that a judge of the court is facing imminent arrest over corruption.

In what could turn to be the start of another purge at the Judiciary since the abortive 2003 Justice Aaron Ringera-led radical surgery, officials from the Judiciary were eager to know from reporters the identity of the targeted person and nature of investigations.

While judges are not shielded from criminal prosecution, the Constitution says they can only be removed from office through a petition “initiated by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission”.

JUDGES SUSPENDED

In 2003, shortly after President Mwai Kibaki came to power, the Judiciary was thrown into disarray after 23 top judges were suspended in the biggest corruption crackdown on the seat of justice.

While the aim was to return public confidence in the institution, the East African Bribery Index (EABI) of 2017, compiled by Transparency International (Kenya), ranked the Judiciary and the Lands ministry as the second most corrupt institutions in the country, after the National Police Service.

It was then no surprise that, in May 2018, Chief Justice David Maraga told a workshop in Nanyuki that the Judiciary and the National Police Service would form an investigation wing to handle corruption complaints against judges and magistrates.

Whether the current investigations are part of that effort is not clear, but the workshop was attended by senior officials from the Directorate of Criminal Investigations and the Ethics and Anti-Corruption Commission.

FAILURE TO PAY TAXES

Investigators say they have a tight case and that their evidence touches on theft, abuse of office, and unlawful failure to pay taxes.

Normally, judges, like Caesars’ wife, must be above suspicion, lest they soil the reputation of the entire institution.

One of the fears is that the arrest of the judge could be interpreted, in some circles, as part of the promised crackdown on the Judiciary after Jubilee’s presidential candidate Uhuru Kenyatta’s election victory was annulled in September 2017.

Soon after, and before President Kenyatta and his political nemesis Raila Odinga entered into a truce, the President had vowed to “revisit” the Judiciary, which had dismissed his victory as “invalid, null and void”.

The Judiciary budget has also been dramatically cut, with the department left with virtually no development funds.

CORRIDORS OF JUSTICE

The judge is not facing investigations on account of personal matters — some which have been whispered within the corridors of justice. Sources said the impending prosecution is mainly in relation to transactions involving the collapsed Imperial Bank, where the judge took Sh12 million without any proper paper work. Detectives were interested in this transaction and believe it was not above board and contravened the Leadership and Integrity Act.

But besides the prosecution, we have learnt — though from junior sources — that the judge, soon after the arrest, will be reported to the Judicial Service Commission (JSC), whose mandate is to receive, investigate and resolve complaints against Judges under Article 168 of the Constitution.

Investigations by the JSC will, however, not stop criminal prosecution of the senior judge, which will be done by juniors at the Magistrate’s court.

PENDING ARRESTS

Unlike other investigations and pending arrests, which are usually communicated with ease by the DCI and the Office of the Director Public Prosecutor, the veil of secrecy surrounding this case attests to the sensitivity and caution on the issue.

The Judiciary usually treats as contempt of court any act which “tends to lower the judicial authority or dignity of the court”, but such investigations and pending arrests are not covered by the Act.

By last evening, Nation sources remained certain that the investigation was complete, the legal analysis finished and the permission to prosecute by Mr Noordin Haji either already given, or highly likely to be granted.