Secrets of Justice Philip Tunoi tribunal report to President Uhuru

A confidential report handed to President Uhuru Kenyatta in July has indicted the Judiciary for subverting the Constitution when it was investigating bribery claims against retired Supreme Court Judge Philip Tunoi.

The tribunal chaired by Sharad Rao accused former Chief Justice Willy Mutunga’s Judicial Service Commission leadership of mishandling the petition by Geoffrey Kiplagat.

Kiplagat, a former broadcaster, had claimed that Justice Tunoi was bribed $2,000,000 (Sh200 million) by agents of Nairobi Governor Evans Kidero to influence the outcome of an election petition filed against him by loser Ferdinand Waititu.

The tribunal ground to a halt as soon as Tunoi was officially retired in controversial circumstances by his Supreme Court colleagues, part of whom sat in the same JSC which endorsed his investigations. The tribunal prepared a report whose details have never been revealed until now.

In the report obtained by The Standard on Sunday, spotlight is cast on the Office of Ombudsman established by Dr Mutunga on August 1, 2011 to arrest cases of maladministration within the Judiciary. This is the same office which had the first contact with Kiplagat’s affidavit after the former CJ obtained it.

Defective petition

The tribunal report says the Ombudsman’s office occupied by Kennedy Bidali, had no legal mandate to investigate a sitting judge. “It is only the JSC which has the mandate to initiate the removal of judges of a superior court. In this regard the commission notes with concern that the Ombudsman has been created and mandated to investigate judicial officers including judges, which may be contrary to provisions of the Constitution,” the report read in part.

The tribunal said the Constitution created JSC “as an independent body to promote and facilitate the independence and accountability of the Judiciary.”

In the chronology to the investigations, the report says Mutunga had the initial contact with the petition “sometime in November 2015.” The tribunal notes that “it is not known when, how and from whom the CJ received the said affidavit” which he proceeded to hand over to Bidali for investigation and verification.

It was not until January 26, two days after Kiplagat made public his affidavit on national television, that Bidali presented his report to the CJ who in turn handed the affidavit and Bidali’s report to the JSC. The commission then formed a select committee which on February 8 petitioned the President to form a tribunal to probe the judge.

The commission faulted Mutunga on two fronts: Delaying to initiate investigations and initiating the process to the wrong place: “Any complaint presented to the CJ in respect to the conduct of a judge, and which on the face of it would amount to a ground for removal, the CJ should act on it promptly and present it to the JSC at the earliest opportunity.”

“The JSC should then give directions for the conduct of any possible investigations,” the report says.

The report also faulted the JSC for forwarding a defective petition to the President in respect of Justice Tunoi.

The petition, attached in the report, requested the President to appoint a tribunal to inquire into bribery allegations against Justice Tunoi and to determine whether he should be removed from office “on the account of the allegation of bribery”.

In its concluding observations, however, the tribunal said the constitutional provision of removing a judge on grounds of bribery allegations only existed in the figment of JSC’s imagination.

“The commission wishes to point out that the grounds for removal of a judge are stated in Article 168 and includes gross misconduct or misbehaviour. Bribery is without doubt gross misconduct but is not a ground for removal per se. Accordingly, the ground for removal should have been based on gross misconduct,” the report says.

The tribunal also noted that although the JSC petition referred to “inappropriate conduct” on the part of the judge, this was not included in the recommendation to the President.

“It behoves us therefore to advice the JSC that henceforth in invoking Article 168 of the Constitution for the removal of a judge, the Article should be complied with to the letter,” the report says.

In the report, the tribunal also noted that personalities serving at the JSC and Judiciary tended to confuse their distinct roles arising from the two institutions.