EACC investigates Judge Tunoi graft case

Trouble is piling up for beleaguered Supreme Court Judge Philip Tunoi after it emerged that the Ethics and Anti-Corruption Commission has moved in to independently investigate bribery claims laid against him.

On Saturday, EACC Chief Executive Officer Halakhe Waqo told the Sunday Nation that investigators were poring over documents and other pieces of evidence alleging that Justice Tunoi received $2 million (Sh200 million) to influence the outcome of a case challenging the election of Nairobi Governor Evans Kidero.

Justice Tunoi and Dr Kidero have denied the allegations.

The revelation came just hours after the Judicial Service Commission asked President Uhuru Kenyatta to form a tribunal to investigate the claims against the judge, filed in an affidavit by former Kass FM journalist Geoffrey Kiplagat that he facilitated payment of the bribe to the judge.

The other players adversely mentioned in the saga are also under the EACC radar.

Mr Waqo declined to provide details so as not to jeopardise investigations, but he told the Sunday Nation that they had made “good progress”.

This was the strongest indication yet that EACC would go ahead with a parallel process even as the President was expected to name a tribunal within 14 days.

“We are on it, especially the bribery and abuse-of-office aspects,” said Mr Waqo.

This could complicate matters both for the Judge and Dr Kidero with indications that the commission has taken statements from key witnesses in the case, including Mr Kiplagat, who triggered the investigation.

UNSHAKEN
The petition had been filed by Kabete MP Ferdinand Waititu who ran on a Jubilee party ticket against Dr Kidero in the 2013 poll.

Chief Justice Willy Mutunga had earlier indicated he had contacted EACC, the Director of Public Prosecutions, the Directorate of Criminal Investigations and the National Intelligence Service over the matter.

Law Society of Kenya Chairman Eric Mutua supported the idea of the EACC investigation, but said this should start after the tribunal has completed its work.

“I guess the process by the EACC is a silent one because of possible questions about double jeopardy. That said, I have no doubt in my mind that the Director of Public Prosecutions will launch investigations once the tribunal renders its decision,” he said.

This came even as State House Spokesman Manoah Esipisu on Saturday told the Sunday Nation that the JSC had yet to transmit the committee’s report to President Kenyatta.

“The JSC will have to send it to the President before we can further comment on it. This announcement was made on Friday afternoon and it’s a weekend,” he said.

In the same fashion and although he has protested his innocence, Governor Kidero’s political future also hangs in the balance.

On Saturday, he said he was ready to defend himself and prove the allegations were malicious.

“We welcome the tribunal and we will make ourselves available if called upon. What many people have failed to acknowledge is the motive of these allegations by the accuser whose timing ahead of 2017 should be questioned by any right thinking Kenyan,” the governor told the Sunday Nation.

Dr Kidero and his legal team will be seeking to tear into the affidavit by the accuser on a number of fronts.

“Nowhere does he (Mr Kiplagat) in his submissions say he met me and I wonder why someone would term this a glaring case,” he said, adding he had a solid alibi on the day he is supposed to have witnessed the handing over of a briefcase bearing money to the judge.

RAY OF HOPE
On Friday, Mr Ahmednasir Abdullahi said Mr Waititu had instructed his lawyers led by Paul Muite, Harrison Kinyanjui and himself to move to the Supreme Court and set aside the judgment that upheld Dr Kidero’s victory.

“By next week we shall file an application in the Supreme Court to declare the Nairobi Governor’s seat vacant and throw out Governor Kidero,” he said.

In the meantime, the tribunal will also be seeking to ascertain the possibility of more players from both inside and outside the Judiciary — raising the possibility that the integrity of the entire Supreme Court could be put to question.

There have been allegations, including by lawyer Ahmednasir, that the amount in question could be Sh300 million and not Sh200 million. LSK has also asked for the disbandment of the court.   

Governor Kidero has said he will be suing Mr Ahmednasir for linking him to the alleged bribery.

The revelation about the possibility of more actors, we have learnt, also arises from questions raised by the JSC committee members after indications that other people in the Judiciary could have been separately approached to receive bribes.

According to records of phone calls and text messages confirmed by NIS to the committee, Mr Kiplagat was in constant communication with three people he claims were acting for the Governor and separately with the Judge. 

Any confirmation that Justice Tunoi had an underhand dealing with his accuser could open a floodgate for legal suits that could complicate matters for the city governor.

Dr Kidero’s hope, however, hinges on the fact that the committee was not able to establish evidence of any contact between him and the judge.

POLITICAL AGENDA
In one of the sessions, Justice Tunoi was hard-pressed to explain his shifting narrative having first declared that he had never known Mr Kiplagat only to eventually admit to knowing him.

Officials from the Central Bank of Kenya were also able to confirm to the committee that the kind of briefcase described by Mr Kiplagat could indeed accommodate the wads of cash in question in US dollars.

The role of Chief Justice Willy Mutunga in the Tunoi saga will also come into sharp focus after it emerged that the affidavit was written on November 22, 2014 and only acknowledged by him after NTV ran its contents a fortnight ago.

“There is a political agenda in all these machinations. I wouldn’t want to point to what the tribunal may come up with but let’s be clear; Tunoi has two issues facing him – now a tribunal and a case on his retirement, someone wants him out by all means,” said a source who preferred anonymity.

If the Court of Appeal rules that Lady Justice Rawal and Justice Tunoi are to retire at 70, they will leave office this year alongside the Chief Justice who leaves in June.