A top judge accused of misconduct will face a tribunal, as numerous justices also battle to clear their names in the wake of bribery claims.
Petitions questioning the conduct of some Supreme Court judges have been filed with the employer, Judicial Service Commission (JSC), with the exemption of the deputy chief justice, who is also fighting a criminal trial.
Some top judges have declared they have no faith in the JSC, with reports that during a meeting of Supreme Court judges, some of those battling petitions suggested that the Directorate of Criminal Investigations (DCI) and Ethics and Anti-Corruption Commission (EACC) should instead be invited to investigate.
Justice Jackton Ojwang' refused to appear before the JSC to answer to allegations of graft, citing witch hunt. This prompted JSC's recommendation yesterday to President Uhuru Kenyatta to form a tribunal to investigate him.
Justice Njoki Ndungú also yesterday declined to appear a second time before the JSC and instead sent her lawyers, questioning why the commission was still pursuing a matter that had been withdrawn by a complainant.
In the seven-member Supreme Court, one of the judges is facing seven petitions, another six, yet another is fighting three and two have one each. One has no case. As a pointer to the vicious wars within the top court headed by Chief Justice David Maraga, six petitions have been filed within the past two weeks, some touching on bribery claims. The JSC has directed the judges, including the CJ, to file their responses within 14 days.
In total, 61 cases are pending before the JSC against judges - one a member of the JSC - and 75 complaints are against magistrates.
The Standard can confirm that last September, immediately after the first allegation that a judge had pocketed Sh50 million was raised with Maraga at a meeting of Supreme Court judges, a majority of those present felt that JSC could not be expected to investigate the matter. They, instead, wanted the DCI and EACC called in.
There were claims that the commission was serving partisan interests, with some blaming insider politics and jostling to influence the Maraga succession. The concern is that with the claims and counter claims, even if in the end they are thrown out, the mudslinging is eroding public confidence.
“Is our Supreme Court that bad? How can it be that every time the CJ is nearing retirement, then these kind of dramas start? They are terrorising judges and ruining the top court. Let the DCI and EACC intervene and we are done with this once and for all,” a judge told The Standard.
“As you can see, it is clearly written (that) if you do not agree with certain people in judgement, you are hapless because they will fix you," added the judge.
But the suggestion to invite the DCI and EACC is understood to have been opposed by one of the judges, who is quoted to have remarked: “Let us not go that way."
Another pointer to the suspicions poisoning relations in the corridors of justice was a remark by a judge who complained to The Standard about haemorrhage of information.
The judge said parties were being informed of persons who are drafting rulings and judgements and even how judges had decided.
It emerged that it was even known a day before the JSC committee sat to determine Ojwang’s fate that they would recommend that he faces a tribunal for failing to appear before them. The committee sat on Tuesday.
According to the judge, another meeting by Supreme Court judges early this month discussed the issue of snubbing JSC hearings. This time one judge reportedly implored his colleagues to appear after they asserted that they had little faith on how it was treating them.
“I am sure in the event they will send us to the tribunal, it will let the truth be known and set us free from these people who want to control the apex court. Independence comes with a price,” he said.
Yesterday, JSC announced the decision to refer Justice Ojwang's case to a tribunal, citing his failure to appear to defend himself against the claims linked to the hearing of a case on the Awendo sugar belt. He is accused of benefiting from rehabilitation, by Migori Governor Okoth Obado, of a road that reportedly led to his house.
"The commission received a report from a committee of the JSC that had been set up to consider the petition filed by Nelson Oduor Onyango, and eight others, against Justice Ojwang'. Regrettably, the judge, despite notice being served upon him, failed to appear. The petition had disclosed sufficient ground to warrant recommendation to President to set up a tribunal," said Maraga.
He wrote to JSC on March 15 saying he would not appear in person and would instead be represented by his lawyers.
“I am copying his letter to my advocates so that they may take charge of this matter. From the whole context of this matter, and from full context of the ill intent against me such as is quite evident, I will not, myself, be appearing before the well-known committee members of the Judicial Service Commission,” he said.
While JSC says it has a reason to believe that Obado built a murram road for the judge, a surveyor it sent to Justice Ojwang's home to find out whether the allegation was true gave a differing observation.
The surveyor, Peter Wanjala, visited Suna East on March 5, and his report filed before the commission reads that the road in question was not private property as had been alleged.
"One doesn't get the feeling that this said road was extended from point B to D to simply access Justice J B Ojwang's home. The said extension provides a good connection to other public access roads towards South West to enable the public to navigate back to Migori town," reported Mr Wanjala.
Yesterday, Njoki and Ojwang' sent their lawyers Andrew Musangi and Nani Mungai to represent them in a session that took almost an hour.
The two were supposed to appear before JSC regarding a complaint by former Law Society of Kenya (LSK) CEO Apollo Mboya on their decision on whether JSC’s directions that former judge Phillip Tunoi ought not to have sat in court after clocking 70 years.
Initial summons by JSC were that they ought to have appeared last Thursday, but they instead sent their lawyer as Mr Mboya had withdrawn his complaint.
Mboya wrote to JSC on February 17, 2017 indicating that his claim against the judges should be marked as settled. He complained that JSC had failed to explain to him and the judges why it went quiet for three years.
“The complaint in which I am now invited to appear before JSC was lodged on October 21, 2015. JSC, for reasons that have not been communicated to me, chose not to attend the complaint for over three years,” the letter by Mboya, and addressed to JSC Secretary Ann Amadi, read.
Mboya indicated that he would not appear before JSC.
“I have, therefore, instructed my lawyers to inform the Judicial Service Commission that I will rely on my submissions as provided and shall waive my right to appear in person,” Njoki said.
Ojwang' opted to file submissions regarding the complaint. He said JSC had no authority to sit on appeal of a court’s decision. “Without the petitioner, the JSC has become the prosecutor and the judge in its own case,” he said.
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