Advertisement

LSK wants a new Supreme Court

Saturday January 30 2016
supreme

Kenya's Supreme Court judges during a past case. PHOTO | FILE

The fate of Kenya’s Supreme Court hangs in the balance following claims that one of its judges took a $2 million bribe in 2014 to sway the outcome of an election petition. These claims have led to calls from the bar for the court to be disbanded.

Geoffrey Kiplagat, a journalist, has sworn an affidavit alleging that Supreme Court Judge Philip Tunoi took a bribe from Nairobi Governor Dr Evans Kidero who was facing a petition from challenger Ferdinand Waititu in 2014.

While the allegations are yet to be proven, the credibility of the Supreme Court will be tested this week when a six-member committee of the Judicial Service Commission (JSC) set up by Chief Justice Willy Mutunga releases its report.

The committee comprises Public Service Commission (PSC) chairperson Prof Margaret Kobia, Attorney-General Prof Githu Muigai, Justice Aggrey Muchelule and magistrates Emily Ominde, Winifred Guchu and Kipkorir Bett.

Now, lawyers say the court should be reconstituted should the committee find the allegations to have a solid basis and recommend that Justice Tunoi be investigated further.

Law Society of Kenya (LSK) chairman Eric Mutua said it would be necessary to reconstitute the Supreme Court if proof emerged that money was given to the judge.

Advertisement

“It is not easy for one judge to influence a judgment in a five-judge bench and, therefore, if there is proof, then it can be inferred that the money was distributed,” said Mr Mutua.

The five judges who presided over the case were Justices Tunoi, Mohammed Ibrahim, Jackton Ojwang. Smokin Wanjala and Njoki Ndung’u. They ruled that Dr Kidero was validly elected, with only Lady Justice Ndung’u dissenting.

Mr Waititu has since demanded that the Supreme Court that confirmed Dr Kidero’s election as the Nairobi Governor be disbanded in the interest of justice. 

If the committee recommends further investigations, then the JSC has ask President Uhuru Kenyatta to set up a tribunal to investigate the case, which will affect the entire Supreme Court.

There are concerns that the Supreme Court may not be in a position to operate with Dr Mutunga having opted for early retirement in June, while his deputy Kalpana Rawal faces statutory retirement having reached the age of 70 — Lady Justice Rawal and Justice Tunoi are awaiting the outcome of the cases they lodged pleading to be retired at age 74 instead of 70.

This could have major political implications given that the 2017 elections could be held without a credible Supreme Court.

According to Nairobi lawyer Gitobu Imanyara, the corruption allegations have tarnished the court and therefore LSK, the PSC and parliament should take advantage of Dr Mutunga’s retirement in June to initiate the constitution of a new bench.

“The allegations have seriously tainted the Supreme Court, which is a product of the 2010 Constitution. However, the reconstitution of the Supreme Court would require the co-operation of the judges because they are protected by law,” said Mr Imanyara. 

The Supreme Court has been under scrutiny since March 2013 when it upheld the election of President Uhuru Kenyatta following a petition by opposition leader Raila Odinga.

Soon after in August, Gladys Boss Shollei, the then registrar of the judiciary, was forced out of office following allegations of irregularly procuring a Ksh310 million ($3 million) modern residence for the Chief Justice.

Mr Imanyara said the ruling on the presidential petition was the beginning of the Supreme Court’s problems since it was disputed by half of the country’s electorate, who felt that their performance was not up to standard.

Bad publicity

Historically, Kenya’s judiciary has suffered bad publicity in regard to inefficiency, corruption, and vulnerability to political pressure. But Dr Mutunga — while taking over in 2011 — made corruption and backlog of cases his priority.

In his first State of the Judiciary address, Dr Mutunga said his team found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity and so weak in its public support, that it was a judiciary that was designed to fail.

Now, in the face of new allegations against Justice Tunoi, LSK chief executive officer Apollo Mboya is concerned that it could generate demands for reviews of petitions against other governors that have been handled by the Supreme Court.

“It appears that the vetting of judges was flawed and it did not give us the best in terms of integrity. We need to look at how we go about appointing judges,” said Mr Mboya.

He is concerned that Kenyans have been under the impression that corruption can be fought through legislation such as putting in place Chapter 6 on integrity, which agencies such as the Ethics and Anti-Corruption Commission (EACC), the Director of Public Prosecution and the police have failed to enforce.

“We need a Supreme Court that inspires confidence among Kenyans because we cannot afford to go to the elections in 2017 when the public is not confident about a court that handles key petitions on presidential elections,” said Mr Mboya.

Advertisement