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Let JSC address claims against four Supreme Court judges fully

The Judiciary has sailed into choppy waters following swirling accusations of serious misconduct made against several justices of the Supreme Court. Claims that some members of the court had been bribed to dismiss an election petition against the Wajir governor have been followed by a formal petition to the Judicial Service Commission, seeking the removal of four judges.

The petition seeks removal of Justices Njoki Ndung’u, Smokin Wanjala Mohamed Ibrahim and J B Ojwang and claims that bribes were paid to influence the petition. It also alleges improper contact between people interested in the petition and members of the bench. The petition further sucks in a number of senior members of the Somali community in government, alleging that these participated in the improper contact and were involved in arranging the bribery.

A second petition, by Yusuf Dimbil, has since been filed before the Judicial Service Commission (JSC) accusing Chief Justice David Maraga of nepotism and criticising him for attending a political rally in Kisii addressed by President Uhuru Kenyatta and for allegedly improperly endorsing Prof George Magoha for Cabinet appointment even before he was vetted by the National Assembly. The petition also alleges that the Chief Justice is captive to lawyer Ahmednasir Abdulahi, who criticises the Judiciary whenever it makes decisions adverse to the interests of his client.

In the Supreme Court, Abdulahi was the lead lawyer for former Wajir governor, Ahmed Abdullahi, in his petition challenging the election of Mohamed Abdi, who unseated the former governor in 2017. Together with Justice Isaac Lenaola, Maraga read a dissenting opinion allowing the petition against Abdi. However, majority of the bench, made up of the four justices complained against, dismissed the petition.

Disqualify participation

The Chief Justice chairs the JSC and would be involved in hearing the petition against majority. Curiously, the petition against Maraga has asked the JSC to disqualify his participation in the determination of the petition against the four. This second petition is viewed as an attempt to invalidate the first petition by painting the picture that in the JSC nobody is good enough to throw the first stone. Sources indicate that since the filing of the first petition, following which a notice has since been sent to the four justices asking them to respond within 14 days, efforts have been made by senior officials from the Somali community to resolve the matter amicably with an offer of a government position for former governor, Abdullahi.

The petition against the four justices compounds an already difficult situation in the Supreme Court which, in a historic decision, annulled the election of President Uhuru Kenyatta in 2017, necessitating a fresh election. The president’s promise that he would “revisit” has been evident in a cold relationship between the Judiciary and the political establishment.

In the context of the cold relationship, Maraga has been caught up in a difficult balancing act, pursuing a principled line of independence as was responsible for the annulment of the presidential election results, while at the same time trying a level of appeasement that would lessen the slings and arrows from the political establishment towards the judiciary. His presence at a recent presidential rally in Kisii was interpreted as an indefensible departure from the line of principle, for which the Chief Justice has received severe criticism. At the same time, the Chief Justice probably only went to Kisii in continuing a policy of appeasement over the election 2017 election petition. Justices Ndung’u and Ojwang are long used to taking the same side in the decisions of the Supreme Court. The two read dissented against the majority decision to annul the results of the presidential election, and had previously also voted together in a futile attempt to maintain former Deputy Chief Justice Kalpana Rawal in office beyond her retirement age of 70. While Wanjala voted with the majority, Ibrahim was unwell and did not participate in the presidential poll petition. Ndung’u, Ojwang and Wanjala, as well as an ill Ibrahim, all missed an important hearing of the Supreme Court in a potentially fateful application that sought to postpone the fresh presidential election. No explanation has been given why they missed court. Because of their voting history, Ndung’u and Ojwang are viewed as strong pro-establishment judges in the Supreme Court, and as enjoying a level of immunity against the backlash to which the court is exposed. The fact that Wanjala and Ibrahim are on the receiving end of shared with Ndung’u and Ojwang is new ground.

While ideological differences are expected in the Supreme Court, allegations of bribery are a different thing. Similar allegations against Justice Philip Tunoi, then a judge of the Supreme Court, were not addressed before he retired. Whatever happens now, the JSC must take seriously and should fully address the allegations against the four.

- The writer is the Executive Director at KHRC. [email protected]