Panic has gripped Supreme Court judges over possible ripple effects from the Judicial Service Commission bribery probe against Justice Philip Tunoi.
The embattled judge now accuses Chief Justice Willy Mutunga of mismanaging his succession.
Unconfirmed reports indicate that two more judges would also face probe following allegations that they bought luxury houses in Dubai around the same time of the alleged bribery. By the time of going to press, we could not independently confirm the fresh claims.
Contents of petitioner Geoffrey Kiplagat’s affidavit seem to suggest the bribery was not confined to one judge. A cross-section of lawyers and observers say the allegations, once proved, would affect all Supreme Court judges.
On Wednesday, lawyer Ahmednasir Abdullahi drew the attention of his fans to paragraph 24 of Kiplagat’s petition that claimed, John Osogo, a personal assistant to Nairobi Governor Evans Kidero, confirmed a wider network of involvement in the scam.
“That on Friday June 6, 2014 at 18:25:45, Osogo sent me the following text from a mobile phone (redacted) to number (redacted): “Tumemalizana na madam wote wawili.” (We are done with the two ladies).
“This is explosive,” Ahmednasir, thought to be a powerful mover in Judiciary circles, and whom Tunoi explicitly claims is among those pushing him out, said.
In the previous paragraph, Kiplagat claims Tunoi had asked Osogo whether “anyone else was in the picture”. Osogo then allegedly promised to confirm and get back to the judge through Kiplagat. He then sent a text message confirming involvement of the two mysterious ladies.
According to Law Society of Kenya chairman Eric Mutua, the bribery allegation, if proved, must shift attention to the whole Supreme Court bench since Tunoi alone cannot sway the decision one way or the other.
“We may have to begin to get to terms with the possibility of reconstituting the entire court in the interest of the nation,” Mutua told The Standard on Sunday yesterday.
LSK chief executive officer, Apollo Mboya, was categorical that the reputation of the court is “irreparably damaged.” The lawyer who has lodged two petitions to oust three Supreme Court judges – Justices Njoki Ndung’u, Ibrahim Mohamed and Jackton Ojwang –accused the court of “confusion”.
He said all indications in Kiplagat’s affidavit, especially paragraphs 23 and 24, point to more judges pocketing bribes in the matter. He said a plain reading of Osogo’s text would mean that more judges were “sorted out”.
“Whichever way you want to look at it, this court will have to be reconstituted by either requiring them to resign or setting up tribunals to investigate them. There’s just too much stench oozing from that court, a lot of legal incest happening there,” Mr Mboya said.
Lawyer Evans Monari said Kiplagat’s affidavit targets more judges. He predicted that the situation will get “murkier” as the judicial process of unearthing the truth pans out. Mr Monari says it came as a “great shocker” that someone could attempt to, leave alone bribe a Supreme Court judge.
He says the probe must get to the bottom of the matter because it has cast serious doubt on the highest court in the land.
“The consequences of this matter are so dire that I shudder to imagine it. That is why we are waiting with bated breath for the inquiry. The truth of the matter is that even the practice of law in this country will go to the dogs if this is confirmed to be true,” Monari said.
The lawyers spoke as Tunoi dug in and blamed Dr Mutunga for botching his succession. In an interview with The Standard on Sunday, the judge said he was being fixed by a cartel keen to control the succession in Judiciary and for purposes of next year’s General Election.
“This has something to do with the composition of the Supreme Court during the General Election next year. I think the CJ has not given good leadership in the succession war. He has said before that he has interest in the choice of the next CJ,” he said.
He said the fanfare with which his inquiry is being subjected to is a clear pointer to “forces within the Judiciary” who do not want him to stay on. Tunoi said although there is another judge appearing before a tribunal on corruption allegations, the JSC had not “gone to the media” about the matter like his case.
The judge also singled out Ahmednasir for waging a campaign to unseat him.
“In publications by The Nairobi Law Monthly, for instance, they have demanded for several months that I leave the Judiciary for no apparent reason. In August 2015, in a paper presented before the judges in Mombasa, Ahmednassir demanded my exit from the Judiciary saying I had overstayed and that I was past the retirement age.”
In the paper titled “The Limits of Prescriptive Reforms: The Struggle and Challenges of Judicial Reforms in Kenya, 2002 to 2010”, Ahmednasir accused Tunoi of doing a “Nkurunziza” on Kenya by clinging on to the Supreme Court despite retirement.
“What is the difference between the Nkurunziza case and Justice Tunoi’s case? Any decision the Supreme Court renders when Justice Tunoi participates in any proceedings before the court is not a decision of the Supreme Court of Kenya as established. This is a scandal the Judiciary is hell-bent in covering but will soon explode on its face and will have wide national political ramifications,” said the lawyer.
In the interview with The Standard on Sunday, Tunoi admits the mobile phone exchanges with Kiplagat came from his number but says they are “concocted and structured” for purposes of giving the impression that he was the one communicating.
“Anyone can get my number from anywhere and claim that we had whatever exchanges. Kiplagat might have tried calling me unknowingly but I did not talk to him because normally I don’t talk to people I don’t know,” he says.
He reiterates he has never met the petitioner but says that from the little he has gathered about him since the allegations came up he is a vagabond and a man with a bad reputation.
Lawyer Katwa Kigen who is accused of collecting the Sh200 million bribe on behalf of the judge has prepared a two page affidavit to be presented to the JSC committee probing the allegations.
In the affidavit obtained by The Standard on Sunday, Mr Kigen admits knowing Kiplagat and interacting with him severally. He however categorically denies claims made by Kiplagat about his role in the saga.
“We have sometimes been on telephone exchanges with him much earlier than August 2014, and possibly later, all on account of our acquaintance, completely unrelated to the allegations of bribery,” Kigen says.
Reference to him
He says he did not discuss with him or Justice Tunoi about the bribery, nor chauffeured Justice Tunoi to collect the bribe.
Kigen notes that Kiplagat’s references to him do not allege that he send him any message. He also notes that the petitoner did not offer precise timings with reference to him.
“All and every single allegation made by Mr Kiplagat as to what I did on August 27th, 2014 are completely and wholly untrue. I am in the process of re-constructing my movements on the said date and shall be glad to share them,” Kigen says in the affidavit.
In the affidavit, Kigen also picks issues with Kiplagat’s affidavit. He says it does not contain his address, does not state who drew it and states it was commissioned by lawyer Mansur Muathe Issa, the JSC lawyer in the Tunoi retirement case.
Yesterday, sources said the CJ had exercised high restraint in the Tunoi matter in view of his seniority and the explosive nature of the matter.
Tunoi is expected to appear before the JSC committee selected to probe him tomorrow at 11am.