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Kenya may seek foreign judges for tribunal investigating Judge Tunoi

Saturday February 13 2016
mutunga

Kenya’s Chief Justice Willy Mutunga (centre) talks to journalists outside the Supreme Court in Nairobi. He was receiving the JSC’s report about allegations of bribery against Justice Philip Tunoi. PHOTO | FILE

Fear of potential conflict of interest will force President Uhuru Kenyatta to appoint retired and foreign judges to be members of the tribunal that will investigate claims that Supreme Court judge Philip Tunoi took a $2 million bribe to sway an election petition in 2014.

Legal experts say President Kenyatta will have to be careful with the composition of the tribunal because four other judges — Mohamed Ibrahim, Jackton Ojwang, Njoki Ndungu and Smokin Wanjala — who heard the petition against the election of Nairobi Governor Evans Kidero could be implicated in the proceedings.

The four will not sit in the tribunal despite the law allowing them to be members.

READ: Kenya Supreme Court Judge Tunoi to face tribunal

Chief Justice Willy Mutunga, who invited the Judicial Service Commission to establish whether the allegations had any basis; and his deputy Kalpana Rawal — who together with Supreme Court Judge Tunoi are separately challenging the provision that they retire at 70 years of age — would also not be seen to be truly bipartisan in the matter.

The president is expected to appoint seven members comprising five superior court judges — either practising or retired — and two advocates, one of whom must have been an advocate for 15 years. 

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Otiende Amollo, chairman of the Commission on Administrative Justice, said Supreme Court judges could be overlooked to avoid a potential situation where they are hearing their own case.

Nairobi lawyer Gitobu Imanyara said President Kenyatta has the leeway to pick judges from other Commonwealth countries, retired judges and practising senior counsel.

Article 168 (5) b of the Constitution says, “The chairperson and at least four other members shall hold or have held office as judges of a Superior Court, or have qualified as such, and shall not have been members of the Judicial Service Commission at any time within the immediately preceding three years. The fifth member of the tribunal shall have been an advocate for a minimum of 15 years. The final two members shall be qualified practitioners in the area of Public Affairs.”

Baraza case

The tribunal that investigated former deputy chief justice Nancy Baraza in 2012 was chaired by former Tanzanian chief justice Augustino Ramadhan, retired Justice Philip Ransley, Prof Judith Bahemuka, Surinder Kapila, Siganga Beauttah Alukhava, Grace Barbara Ngele Madoka, and Prof Mugambi Jese Ndwiga Kanyua.

Ms Baraza had been accused of assaulting security guard Rebecca Kerubo and threatening to shoot her at the Village Market shopping mall in Nairobi. The tribunal found that Ms Baraza was not fit to hold office and recommended her sacking.

In the Justice Tunoi case, journalist Geoffrey Kiplagat has sworn an affidavit that he arranged for the judge to meet Dr Kidero’s agents and to later receive $2 million as a bribe to influence the outcome of the petition filed by MP Ferdinand Waititu.

A special committee of the Judicial Service Commission on February 5 recommended that the president established a tribunal to investigate the matter after finding that Justice Tunoi was culpable of gross misconduct and misbehaviour during the hearing of the petition.

The president should act within 14 days of receiving the recommendation and at the same time suspend Justice Tunoi pending the outcome of the tribunal.

Justice Tunoi, who has chosen to defend himself at the tribunal, should be on half pay — Ksh375,000 per month ($3,750) — while under suspension. Had he chosen to resign, as some lawyers had advised, he would earn all his retirement benefits.

Last week on Wednesday, State House spokesperson Manoah Esipisu said President Kenyatta was yet to receive the Judicial Service Commission’s recommendation.
If the tribunal establishes that Justice Tunoi received a bribe, he will be sacked and his career in the judiciary end in disgrace.

Justice Tunoi — together with Deputy Justice Rawal — is already fighting another battle in court where he is challenging the statutory retirement age of 70 as per the 2010 Constitution. They both argue that they were appointed under the previous Constitution that put the retirement age at 74.

Last year, two commissioners of the Ethics and Anti-Corruption Commission, Mumo Matemu and Irene Keino, resigned rather than face a tribunal. The two had been suspended after parliament declared them incapable of leading the fight against corruption. 

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