Justice Tunoi turns down calls by senior lawyers to resign

Supreme Court Judge Philip Tunoi

Throw in the towel or face a tribunal and be damned?

These were the two stark choices facing Supreme Court Judge Philip Tunoi yesterday as the reality of being dragged through a murky process of clearing his name started to dawn on legal experts and observers.

At least two Senior Counsels and a host of other top lawyers say the prudent thing for the judge is to resign and save himself the humiliation of being removed after an illustrious career spanning three decades.

Besides, proceeding on the tribunal route could throw the country into a legal quagmire of unimaginable proportions should he appeal the decision or implicate the Supreme Court in the bribery allegations.

However, Justice Tunoi is adamant that he will go the whole hog and clear his name against accusations of taking a Sh200 million bribe to influence the decision on the election petition of Nairobi Governor Evans Kidero.

"I maintain that I will face the tribunal. The question of resigning is not in my mind right now. It is out of place. I need to clear my name first before I think of anything else," Justice Tunoi told The Standard on Sunday yesterday.

Law Society of Kenya (LSK) Chairman Eric Mutua says whether Tunoi is cleared or not at the end of the process, the difference would be the same.

"With the kind of evidence that has been adduced so far, he requires a miracle to come out of this. But even if he were to survive by that miracle, the damage will have been done. The only viable option left is resignation or retirement before the tribunal picks," Mr Mutua said yesterday.

According to the LSK chairman, a resignation or retirement of the judge prior to appointment of a tribunal would rob the tribunal of juridical standing as he would no longer be a judge. However, the matter would assume a criminal dimension attracting the interest of security agencies and the Director of Public Prosecutions (DPP).

"If he pushes on with the tribunal and appeals the decision at the Supreme Court as the law allows, the country will be thrown in turbulence as the Supreme Court itself is part of these shenanigans," Mutua said.

Senior Counsel Ahmednasir Abdullahi says it will be foolhardy for the judge to proceed against such evidence as has been adduced. Abdullahi, a former member of the Judicial Service Commission, says even a resignation will not save him.

"What is there for him to counter such evidence?  I personally don't think he will face that tribunal. He will run away. If he does that, the DPP will charge and prosecute him. Either way he is dead meat," Abdullahi, whom the judge has accused of hounding him, told The Standard on Sunday yesterday.

Law scholar Prof Ben Sihanya says the question of whether Tunoi should resign or face the tribunal is not a question to be answered by the judge alone. He said the decision affects more people than himself and his answer alone is not conclusive.

"It's a powder keg that could kick out many people  at one fell swoop. It's not entirely up to him, really. He will be under pressure one way or the other by interest groups. We all know this is not entirely about him alone as an individual," Sihanya said.

In the past, judges and politicians have sworn not to resign only to eat the humble pie a few days later. Former Chief Justice Bernard Chunga resigned in 2003 to avoid facing a tribunal formed to probe him by former President Kibaki, days after standing cocky at the steps of the High Court.

"If he lives in this country he would know how tribunals are conducted. One, they tend to be powered by other considerations especially political ones. Second, he would know the threshold has been lowered to an extent that he stands a snowball's chance in hell  of survival," Prof Sihanya said.

He added: "If he chooses the path of defending himself, I can tell you without fear of contradiction that the entire Supreme Court will collapse. This will bring with it attendant effects of bringing to disrepute of among other things, the presidential election petition of 2013."

Immediate former LSK CEO Apollo Mboya said the JSC finding that the judge had "inappropriate interaction and communication" with Governor Evans Kidero's agents had sealed the fate of the judge. On that score alone, he says, the judge will not survive the tribunal.

"If I was him, and I am not advising him, I would take my pension of 35 years instead of waiting for the obvious and disgraceful removal. Effectively, parts of the allegations have been proved way before the tribunal starts its work," he said.

Mboya, who has filed two petitions to remove four Supreme Court judges, says a judge ought to be beyond reproach and without blemish "like Caesar's wife".

"It's now a question of doubts and if they have been established. It's not a question of proving this beyond reasonable doubt. You will have to explain to me how the judge can survive in such circumstances," he said.

Mr Mboya touched on the question of appeal and the difficulties it is likely to bring. He says technically, the Supreme Court cannot sit in the matter of Tunoi's appeal because it is an interested party. This will resort to a legal swamp, he said.

"He should spare us all this drama. He is a senior judge for heaven's sake. He knows or ought to know what it all portends," he said.

Mutua also mentioned a likely scenario of the tribunal absolving the judge of the allegations: "In that unlikely event, he will go back to work and continue dispensing his duties, assuming the courts will have ruled on his matter of retirement."

The LSK chair said the tribunal would run for a minimum of two months before tabling its verdict. This is on assumption that the judge will not throw legal challenges in its way as part of "exercising his rights".