More judges could join Tunoi in dock as committee begins work

Sunday January 31 2016

Supreme Court Judge Philip Tunoi. The judge has

Supreme Court Judge Philip Tunoi. The judge has denied the bribery claims attributing the corruption allegations against him to the jostling for succession in the Supreme Court. FILE PHOTO | PHOEBE OKALL | NATION MEDIA GROUP 

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Embattled Supreme Court Judge Philip Tunoi is on Monday expected to face the special committee investigating corruption allegations against him even as the Sunday Nation learnt that some of his colleagues could be sucked into the damaging claims that have shaken the Judiciary.

On Saturday, Prof Margaret Kobia, the chair of a special Judicial Service Commission (JSC) committee investigating the matter, told the Sunday Nation that Justice Tunoi will choose whether to be accompanied by his lawyers or appear alone.

“Yes, we are meeting on Monday. It should also be known that we are not a tribunal and as such we will not be cross-examining either the accuser or the accused,” said Prof Kobia.

Even as the Kobia committee prepares for Monday’s sitting, the Sunday Nation learnt that the bribery allegations against Justice Tunoi could suck in some of his colleagues, with fears that the credibility of the highest court in the land could be damaged beyond repair.

Law Society of Kenya Chairman Eric Mutua said the Sh200 million bribery allegations could shake the entire Supreme Court.

“If the allegations as contained in the affidavit turn out to be true, then I am of the opinion that this money was not meant for a single judge but at least a majority of the full bench who also have some influence among their colleagues,” Mr Mutua said.

The Supreme Court is composed of Chief Justice Dr Willy Mutunga as its president, Deputy Chief Justice Kalpana Rawal, Justice Jackton Boma Ojwang’, Justice Njoki Ndung’u, Justice Mohammed Ibrahim, Justice Smokin Wanjala, and Justice Tunoi.

All the seven judges sat in an appeal by Nairobi Governor Evans Kidero’s against the nullification of his election.

Six of the judges rendered a concurring judgement except Justice Ndung’u who presented a separate but concurring judgment.

The bribery allegations against Justice Tunoi stem from an affidavit by a former Kass FM journalist Geoffrey Kiplagat that he facilitated payment of a $2 million (Sh200 million) bribe to the judge to influence the outcome of an appeal lodged by Dr Evans Kidero against the nullification of his 2013 election.

The story has shaken the Judiciary since it touches the highest court in the land, regarded as an institution that should be a repository of integrity and morality.

On Monday, the Supreme Court controversy was a major subject of debate at events to mark the anniversary of the death of the late opposition leader Jaramogi Oginga Odinga.

Ruaraka MP Mr TJ Kajwang echoed an earlier demand by Mbita MP Millie Odhiambo that the graft saga should lead to a reopening of the presidential election petition filed by Cord leader Raila Odinga in 2013.

“A decision of the Supreme Court is arrived at by five judges. If by any chance there is an account of graft touching on any of the judges, the whole team must go home. We know what happened at the court to our petition. If the committee finds Mr Tunoi guilty, we will demand that Raila is sworn in as President,” Mr Kajwang said.

A source familiar with the saga told the Sunday Nation that at least two prominent lawyers are expected to accompany the judge in his make or break appearance before the committee as he battles bribery claims that he has denied since they were first revealed by NTV last Sunday.

“Normally, the special committee such as the one that has been constituted will analyse the evidence and give the judge a hearing before it reports back to the full sitting of the commission (JSC),” Senior Counsel and former JSC member Ahmednassir Abdullahi said.

Prof Kobia told the Sunday Nation her committee will follow the standard procedure applied when the JSC handled the case of the former Deputy Chief Justice Nancy Baraza who was accused of assaulting a guard, Nancy Kerubo.

“As a matter of due process, the JSC formally receives the petition through an affidavit and forms a committee which then establishes if there is any substance in the matter before recommending to JSC in case there is need for further investigation by a tribunal,” she said.

The election petition out of which the saga emerged was filed by Kabete MP Ferdinand Waititu who had run against Dr Kidero.

Mr Waititu now represents Kabete constituency in the National Assembly, a seat he won in a by-election occasioned by the murder of the former MP George Muchai last year.

In the affidavit Mr Kiplagat filed on November 22, 2014, he reveals damning details as well as alleged mobile phone communication between himself, the judge and other players.

He claims as part of the scheme, the judge was codenamed Cherota while Dr Kidero was referred to as Kibet “in order to expedite work covertly”.

A number of businessmen, a lawyer and Mr Kidero’s aide have also been sucked into the controversy.

The judge has denied the bribery claims attributing the corruption allegations against him to the jostling for succession in the Supreme Court.

“I have never taken a bribe in my life; such allegations have never been made against me. The accusations are being used to malign my service to the Judiciary,” Justice Tunoi said on Tuesday as the allegations were revealed.

He has also denied having ever met Dr Kidero or Mr Kiplagat in person.

“My side of the story has yet to be heard and I am anxious about the JSC decision. I am informed that a group of lawyers and one judge drafted the affidavit for Geoffrey Kiplagat,” Justice Tunoi said.

Members of the JSC committee are Attorney-General Githu Muigai, Aggrey Muchelule, Emily Ominde, Winnie Guchu and Kipkorir Bett.

The committee, that was set up on Wednesday, was given seven days to complete its work.

The Kobia committee, the Sunday Nation understands, will be poring over at least three reports from the National Intelligence Service (NIS), the Directorate of Criminal Investigations (DCI) and a local telecommunications company that is believed to have the phone records.

“When the affidavit was filed, and given the seriousness of the matter involved, the CJ officially enlisted NIS and DCI to examine the allegations. Unofficially, the CJ also sought the services of a telecommunications company to help authenticate the alleged mobile communications between the judge and the petitioner (Mr Kiplagat),” a source familiar with the matter told the Sunday Nation.

It is said the findings of the three reports matched.

“Even on face value the affidavit, in my view, looks very strong,” Mr Abdullahi told the Sunday Nation, on Sunday, as the country anxiously awaits the outcome of the investigations.

In addition, the special committee is likely to review at least two CCTV footage recordings reportedly retrieved from a restaurant in the city centre where one of the alleged bribery planning meetings.

Another set of recordings was reportedly obtained from a petrol station where the bribe money was allegedly handed to a lawyer on behalf of the judge.

Furthermore, reports indicate that the committee will also look into further allegations that some judges could have bought property in Kenya and the Middle East with money whose source is yet to be ascertained. 

“Though some of these properties are in the names of the judges, background checks on their bank accounts do not reflect movement of cash towards settling the purchase price,” a source told the Sunday Nation.

A week before Justice Tunoi was hit by the bribery bombshell, CJ Mutunga had also invited the Ethics and Anti-Corruption Commission (EACC) and the Auditor General to conduct a lifestyle audit of judicial officers.

“I have asked the EACC and the Auditor-General to conduct a lifestyle audit in the judiciary starting with me and Supreme Court judges,” said Dr Mutunga.

Though seemingly harmless at the time, the Sunday Nation understands that it could have been Dr Mutunga’s way of hinting at the rot that persists in the Judiciary.

In addition, the JSC committee will go back to the election petition judgment in search of clues that the decision may have been influenced in favour of Dr Kidero.

According to the LSK chairman, since the 2013 presidential election petition filed by Mr Odinga against the election of President Uhuru Kenyatta, there has been talk of massive corruption in the Supreme Court.

“These claims against Justice Tunoi have come out probably because of a deal gone sour. How many more are there the public don’t know of?” Mr Mutua posed.

However, the judiciary has in the past fought back against the allegations with Dr Mutunga in 2013 urging “Kenyans to give us justice, treat us as family, compatriots and fellow human beings!”

This week the CJ said on the investigation: “We have handed over the report to that committee and that committee will look at the allegations and respond to them.”

The bribery allegations have also accelerated the succession battles at the Supreme Court as Dr Mutunga prepares to retire in June.

Justice Rawal is also in court fighting against JSC’s decision to retire her after she attained the mandatory retirement age for judges of 70 instead of 74 in line with the old constitution.

Other judges who are also challenging the retirement age are Justice Tunoi. High Court Judge David Onyancha has since opted to retire.

With some of the most senior judges fighting various battles, and the CJ heading for retirement, Mr Mutua said LSK will be demanding the reconstitution of the Supreme Court the outcome of the JSC’s investigations and a possible tribunal appointed by the president notwithstanding.

“These are allegations that shake the core of the judiciary. They are not against a magistrate or some lower cadre judicial officer but a Supreme Court judge. These allegations are therefore a confirmation that we are dealing with a rotten court,” Mr Mutua said.