Kenya teeters on the edge of a twin-muzzled crisis should a sub-committee of the Judicial Service Commission (JSC) appointed on Wednesday to probe bribery claims against Supreme Court judge Philip Tunoi find him guilty as accused.
Respected legal minds and governance experts have cautioned that the country could face a constitutional and political crisis with dire consequences.
Constitutional experts warn, should Tunoi be found culpable in the bribery claims, the ramifications of the verdict could snowball into the dissolution of the Supreme Court bench.
If the JSC taskforce headed by Public Service Commission chair Margaret Kobia submits that Tunoi took a Sh202 million bribe from Nairobi Governor Evans Kidero (as alleged), legal experts opine that fingers could also be pointed at other members of the Bench.
The sensational accusations filed in a sworn affidavit by one Geoffrey Kiplagat, frame Tunoi of having taken the bribe to influence an election petition ruling in favour of Kidero.
The governor was embroiled in an election dispute with his closest challenger Ferdinand Waititu, now Kabete MP, after the 2013 elections. Kobia’s team was on Wednesday given one week to submit its findings.
Other members of the special committee are Attorney-General Githu Muigai, High Court judge Justice Aggrey Muchelule, magistrate Emily Ominde, Winnie Guchu and Kipkorir Bett. Lawyers who talked to the People Daily yesterday expressed apprehension that gloom and disorder await the nation and, specifically, the Judiciary in the event that the claims against Tunoi are proved true.
“Such a finding would mean the JSC must recommend to the President to appoint a tribunal to look into those allegations which, if proved, would result in the judge being relieved of his duties and thereafter possibly be charged with graft. That is not all.
All the judges who sat on the Bench that gave the verdict in the petition would become the subject of the tribunal’s proceedings. Any other judge who may be found culpable in that scandal would, too, have to be shown the door.
The extreme side of it is that the entire Supreme Court (Bench) would face dissolution on grounds the public may no longer have trust in it as currently constituted, partly or fully,” observed a long-serving Nairobi constitution lawyer.
He said another outcome of a guilty verdict could be a train of litigants who had lost in other cases that the judge sat in, coming out to seek redress on grounds decisions against them were corruptly influenced. “Such losers could include persons and institutions with high political, legal and administrative stakes in the outcome of this probe.
Key among them, of course, could be the Cord leadership who would find reason to argue that the 2013 petition it had filed against the election of President Uhuru Kenyatta and his deputy William Ruto might have been tainted by Tunoi’s presence.
Outgoing LSK president Eric Mutua says if Kiplagat’s claims were to nail Tunoi, then the credibility of his colleagues in the Supreme Court would stand questioned, also, adding that it would be easy to suspect the judge was acting on behalf of some, if not all, judges of the court.
Mutua argues, the entire Judiciary is on trial in the face of the claims against Tunoi and can only be redeemed if the contents of Kiplagat’s affidavit are found to be unfounded.
Lawyer Jackson Kirwa argues that should both the JSC sub-committee and a subsequent tribunal find that indeed Tunoi took the bribe, then the election of Kidero would be called into question, thereby giving Waititu leeway to move to court to demand a review of his petition.
“The painful aspect of this saga would be that should Kidero be found to have actually bribed Tunoi, then his election could be declared null and void. Subsequently, Kidero could be barred by the electoral commission from participating in future elections, both as a voter or as a candidate,” said Kirwa.
He observed that should the Supreme Court be eventually dissolved, the biggest losers in that game would be youthful judges Njoki Ndung’u, Smokin Wanjala and Mohamed Ibrahim who still have many years to serve.
Chief Justice Willy Mutunga his deputy Kalpana Rawal and Tunoi have been on the edge of exit on account of age, but the Tunoi fray now threatens to shroud the would-have-been honourable farewell parties under a cloud of scandal.
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